\J 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


CONDUCT  OF  LAWSUITS. 


CONDUCT  OF  LAWSUITS 

OUT  OF  AND  IX  COURT: 


PRACTICALLY  TEACHING,  AND  COPIOUSLY  ILLUSTRATING,  TIIK 

PREPARATION   AND  FORENSIC  MANAGEMENT  OF 

LITIGATED  CASES  OF  ALL   KINDS 


BEING   A   NEW   EDITION   OF 

"PRACTICAL   SUGGESTIONS" 

REVISED  AND  REWRITTEN 
BY 

JOHN    C.   REED 

AUTHOR    OF    "AMERICAN    LAW    STUDIES" 
SECOND  EDITION 

WITH    AN    INTRODUCTION    BY 

JOHN    H.    WIGMORE 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1912 


Copyright,  1885, 
By  John  C.  Reed. 

Copyrirjht,  1912, 
By  Little,  Brown,  and  Compant 


•o 


^ 


o 


^  PUBLISHER'S   NOTE. 


When  an  author  has  readied  such  a  point  of 
excellence  that  his  work  is  beyond  criticism  and  is 
accorded  universal  praise,  it  would  seem  eminently 
wise  to  leave  his  book  unmarred  by  further  effort 
to  improve  it.  In  ''  Reed's  Conduct  of  Lawsuits  " 
the  scope  is  such  that  the  book  is  not  dependent 
upon  citations  for  its  usefulness,  even  in  a  remote 
degree.  The  publishers  have  therefore  deemed  it 
unnecessary  to  attempt  to  improve  by  revision  the 
admirable  text  of  Mr.  Reed's  book,  but  present 
herewith  their  author's  work  exactly  as  he  left  it, 
confident  that  it  will  need  a  greater  age  to  pro- 
duce a  better  work  or  one  that  may  be  studied 
with  a  greater  degree  of  moral  and  mental  benefit 
by  those  who  seek  a  safe  guide  to  legal  ethics  and 
the  unwritten  code  of  practice  of  the  law. 


INTEODUCTION  TO   THE   SECOND 
EDITION. 

By  JOHN  H.  WIGMORE. 


I  HAVE  long  admired  this  book,  and  am  glad  to 
see  it  going  into  another  edition.  It  is  for  several 
reasons  most  admirable  in  its  kind.  For  one  thing, 
its  standards  of  conduct  are  high  and  conscientious, 
without  being  either  chivalrously  unpractical  or 
conventionally  unreal.  In  the  next  place,  its  treat- 
ment of  these  everyday  problems  is  based  upon  a 
thoughtfulness,  a  large  philosophy,  and  a  shrewd 
perception  of  human  nature  which  links  it  to  the 
truths  of  life  in  general,  and  makes  the  lawyer  as  a 
practitioner  fit  into  the  lawyer  as  a  man.  Fur- 
thermore, it  takes  up  the  subject  solely  as  a  field  for 
unwritten  experience  in  tact  and  conduct,  not  min- 
gling the  transitory  and  local  rules  of  legal  pro- 
cedure; and  this  unwritten  experience  it  covers 
systematically  from  beginning  to  end.  Finally,  it 
views  the  profession  of  the  advocate  as  a  perma- 
nent institution  in  the  world's  justice,  coming  down 
through  the  ages,  and  garnering  traditions  and  wis- 
dom from  past  generations  for  the  edification  of 
present  and  future  ones.      Client  and  counsellor, 


Viii     INTRODUCTION    TO   THK   SECOND  EDITION. 

advocate,  jury,  and  judge  —  their  ways  and  their 
needs  and  their  notions  were  known  and  studied 
in  Athens,  Rome,  England,  and  America.  Tlie 
world's  business  and  its  laws  may  change,  but 
human  nature's  motives  and  foibles  have  formed  a 
constant  element.  The  psychology  of  a  lawsuit  is 
still  the  great  practical  problem  for  the  lawyer; 
and  Quintilian,  Scarlett,  and  Choate  here  come 
together  on  common  ground. 

All  these  four  important  aspects  of  the  subject 
are  united  in  Mr.  Reed's  pages,  in  a  satisfying  way 
not  to  be  seen  in  any  other  book  known  to  me. 

This  is  the  kind  of  book  whose  substance  every 
young  lawyer  should  commit  to  memory.  I  mean 
that  statement  literally.  On  leaving  the  law 
school,  he  should  live  with  this  book  until  he 
knows  its  precepts  from  cover  to  cover.  A  rule 
of  law  can  be  searched  for  when  needed ;  but  not 
so  these  principles  of  tact  and  judgment  in  per- 
sonal conduct.  To  be  useful  they  must  be  so  firmly 
appropriated  that  they  become  part  of  one's  own 
experience  and  belief,  ready  at  an  instant's  call. 
In  the  presence  of  client,  witness,  judge,  or  jury, 
there  is  no  opportunity,  often  not  even  a  warning, 
to  seek  the  kind  of  help  that  lies  treasured  here. 
If  it  is  not  already  mastered  and  become  a  part  of 
one's  self,  its  help  will  come  too  late.  And  when  a 
book  is  as  good  as  this  is  on  every  page,  the  pains 
are  worth  bestowing.  If  to  the  equipment  of  legal 
knowledge  and  honest  unskilled  ambition  which 
thousands  of  beginners  among  us  to-day  possess, 


INTRODUCTION   TO    THE    SIX'OND   EDITION.      ix 

could  be  added  in  each  one  the  intelligent  use  of 
the  mature  wisdom  here  purveyed,  the  profession 
and  the  community  in  the  coming  generation  would 
be  notably  the  better  for  it. 

To  the  memory  of  Mr.  Reed  (whom  I  never  had 
the  honor  of  knowing  personally)  I  am  glad  to 
offer  this  public  homage  of  gratitude. 


PEEFACE. 


Contrasted  with  Practice,  —  in  the  main  an 
aggregate  of  forms  and  small  details  variously 
prescribed  by  many  Legislatures,  and  which  is 
more  and  more  abandoned  by  American  law  au- 
thors to  the  statutes  of  the  State  where  the  case 
in  question  finds  its  tribunal,  —  our  subject,  the 
Conduct  of  Lawsuits,  is  a  system  which  is  alike  in 
all  the  States,  and  in  all  the  courts,  whether  State 
or  Federal.  Li  the  great  bulk  of  cases  the  end  of 
litigation  is  to  procure  or  avoid  an  adjudication 
that  so  much  money  be  paid,  or  certain  property 
be  surrendered,  or  a  contract  be  specifically  per- 
formed, or  such  and  such  punishment  be  suffered ; 
each  cause  of  action  suggested  being  founded  on 
an  act  of  more  than  hourly  occurrence  in  every 
society.  The  means  by  which  the  end  is  sought 
are  comparison  of  the  rights  claimed  and  the  pro- 
cedure chosen  with  the  directions  of  the  law; 
and  if  this  do  not  prove  decisive,  as  most  often 
happens,  a  further  comparison  of  the  proofs  of 
one  side  with  those  of  the  other.  While  the  Code 
differs  from  the   common   law,  and  some  of  our 


xu  PREFACE. 

States  adopt  the  former  and  others  hold  to  the 
latter,  and  while  procedure  in  its  constituents  of 
forms  of  declarations  and  pleas,  service,  process 
to  produce  evidence,  and  all  the  remaining  items, 
is  settled  by  every  State  without  apparent  regard 
to  the  anterior  English  law  or  that  of  other  Ameri- 
can jurisdictions ;  on  the  other  hand,  the  end  and 
the  means  just  described  are  common  to  the  race, 
and  consequently  parties,  in  all  places,  strive  after 
similar  objects  in  essentially  similar  ways.  And 
so  the  conduct  of  lawsuits  in  Maine  and  in  Cali- 
fornia is  really  identical.  The  law  of  one  may 
differ  widely  from  that  of  the  other  in  many  pro- 
visions of  great  concern  to  the  local  practitioner ; 
but  this  no  more  requires  in  each  State  a  different 
science  of  managing  cases,  than  the  great  diver- 
sity in  the  face  of  the  earth,  in  climate,  and  in 
the  language  and  character  of  the  inhabitants, 
requires  a  new  manual  of  strategy  and  tactics 
for  military  operations  in  every  new  seat  of  war. 
There  are  but  three  turning-points  in  litigation. 
A  party  wins  by  showing  a  legal,  evidential,  or 
emotional  superiority  to  the  other.  Appeal  to 
the  judgment  in  making  effective  the  first  two, 
and  excitement  of  the  feelings  in  the  third, — 
what  are  more  common  than  these  to  man  the 
world  over !  In  their  preparation.  Eastern  and 
Western,  English  and  American  lawyers,  all  seek 
to  provide  the  superiorities  mentioned,  and  they 
strive  to  present  and  maintain  them  in  their  con- 
duct in  court.     The  principles  of  preparation  and 


PREFACE.  xiii 

of  trial  and  argument  remain  unchanged  amid  all 
local  differences,  whether  of  substantive  or  reme- 
dial law.  Like  the  principles  of  Evidence,  Plead- 
ing, and  Statutory  Construction,  and  like  those  of 
the  practical  arts,  they  partake  of  the  universality 
of  logical  processes  and  the  laws  of  human  action. 
Thus  it  appears  that  Conduct  of  Lawsuits  belongs 
to  the  realm  of  the  general  law  author,  a  province 
which  every  year  becomes  more  clearly  defined 
in  America.^  And  it  is  my  conviction,  after  long 
contemplation,  that  there  is  no  other  division, 
not  even  excepting  the  highly  developed  ones  of 
Pleading,  Evidence,  and  Statutory  Construction, 
in  which  the  general  law  so  completely  coincides 
with  that  of  the  State.  It  is  true  that  a  large 
part  of  what  we  call  Conduct  of  Lawsuits  more 
nearly  tallies  with  theory  and  art,  as  we  com- 
monly use  those  words,  than  with  the  law  which 
we  constantly  look  for  in  text^books.  But  as  the 
usual  course  of  things  in  the  courts  is  held  of  it- 
self to  be  authority,  we  see  that  even  this  part 
belongs  to  the  law.  And  there  can  be  no  hesita- 
tion as  to  the  rest,  illustrated  as  it  has  been  by 
judicial  decisions,  though  with  very  imperfect  de- 
velopment, as  we  shall  soon  show. 

1  See  American  Law  Studies,  §§  196,  197,  200,  810-820,  distinguish- 
ing  the  general  law  from  State  and  Federal  law,  presenting  its  leading 
importance  in  education,  and  telling  how  it  is  the  concern  of  the  text- 
writer  ;  and  contrast  with  Ibid.,  §§  1002-1011,  which  show  the  smaller 
place  occupied  by  the  general  law  in  actual  practice.  In  these  passages 
I  have  taken  great  pains  to  develop  the  subject  adequately  from  every 
important  point  of  view. 


XIV  PREFACE. 

Our  subject  is  of  the  greatest  moment  to  the 
lawyer.  Its  mastery  is  the  most  important  part 
of  his  professional  education.  If  he  does  not 
know  the  right  methods  of  preparing  and  trying 
his  case,  any  success  of  his  will  be  accidental  only, 
and  he  must  soon  give  way  in  the  arena  of  prac- 
tice to  those  of  his  brethren  who  do  know  them. 

An  old  author  defines  art,  in  its  sense  of  theory, 
to  be  a  pre-instruction  which  shows  the  true  way 
and  reason  of  doing  something.^  I  would  impart 
fully  the  rationale  of  both  the  preparatory  and 
forensic  management  of  cases,  and  I  hope  that 
in  my  effort  I  have  conformed  to  the  definition 
quoted.  And  further,  I  have  throughout  clung 
so  closely  to  actual  and  familiar  facts  that  I  also 
hope  my  brethren  will  feel,  —  to  paraphrase  the 
language  of  Shakespeare,  which  has  long  seemed 
to  me  to  show  the  essence  of  sound  teaching  — 
that  the  business  and  practical  needs  of  litigation 
prompt  all  that  I  say.^  This  book  was  conceived, 
and  it  has  been  written,  while  the  author  was 
laboriously  engaged  in  a  general  practice. 

I  do  not  pretend  to  have  established  anything 
new.     I  only  claim   that  I  have    been   the   first 

^  "Ars  est  praeceptio,  quae  dat  certain  viam  rationemqiie  faciendi  ali- 
quid."     Auct.  ad  Her.,  1.  1. 

*  The  Archbishop  having  lauded  the  wisdom  with  which  Henrj'  V.  dis- 
courses of  affairs  of  church  and  state,  of  war  and  of  policy,  and  then  the 
unquestioning  acceptance  of  the  King's  views  by  all  hearers,  gives  his  con- 
clusion in  these  words  alluded  to  in  the  text :  — 

"  So  that  the  art  and  practic  part  of  life 
Must  be  the  mistress  to  this  theoric." 


PREFACE.  XV. 

exhaustively  to  analj'ze  and  systematically  to 
present  and  illustrate  the  all-important  principles 
which  every  good  lawyer  follows,  or  ought  to  fol- 
low, in  managing  litigation.  My  business  from 
first  to  last  is  with  those  old  principles  which 
cannot  be  commenced  with  too  early,  and  to  which 
the  best  endowed  member  of  the  profession  yields 
increasino;  obedience  while  he  is  maintainino:  and 
extending  his  leadership.  It  is  high  time  that 
they  be  properly  elucidated  as  a  whole ;  and  that 
the  young  lawyer,  instead  of  being  left  to  pick 
them  up  at  random  and  haphazard  in  a  long  mis- 
spent novitiate  of  practice,  be  furnished  with  a 
manual  explaining  to  him  how  understandingly 
to  take,  ably  prepare,  and  skilfully  try  his  cases. 
The  author  trusts  that  he  has  in  the  following 
pages  given  his  younger  brethren  this  needed 
book. 

The  reader  is  referred  to  the  General  Introduc- 
tion for  a  fuller  and  more  precise  statement  of  the 
scope  and  purpose  of  the  work. 

J.  C.  R. 

Atlanta,  Ga.,  May,  1885. 


TABLE    OF    CONTENTS. 


GENERAL   INTRODUCTION. 

Purpose  of  the  chapter,  §  1.  —  Conduct  of  Lawsuits  distinguished 
from  Practice;  separately  treated  because  of  its  high  develop- 
meut  and  its  indispensableness  to.  all  practitioners,  §  2.  — 
Contrasted  with  the  method  of  judges,  §  3.  —  The  words 
Lawsuits  and  Litigation  used  in  their  widest  sense,  §  4.  — 
Preparation  of  cases  glanced  at,  §  5.  — The  judge  is  disinter- 
ested and  the  lawyer  not,  §  6.  —  Process  of  nature  that  every 
great  interest  receive  devoted  protection,  §  7.  —  How  the  right 
is  secured  by  impartial  judges  and  juries,  and  free  prepara- 
tion and  speech  of  counsel,  §  8.  —  Average  practitioners  and 
average  cases  our  special  subject,  §  9.  —  Law  and  fact  as 
elements  of  litigation,  and  their  several  tribunals,  §  10. — 
Ubiquity  in  practice  of  law  and  fact  contrasted,  §  IL  — 
Mixed  questions  of  law  and  fact,  §  12.  —  The  two  present  iu 
every  case,  §  13.  —  A  third  element  of  litigation,  that  is,  the 
emotional,  §  14.  —  Two  cases  illustrating  this  third  element, 
§§  15,  16.  —  Importance  to  the  practitioner  of  knowing  com- 
mon views,  prejudices,  likes,  and  dislikes,  §  17.  —  The  law  as 
administered  moi'e  affected  by  feeling  than  that  of  the  books, 
§  18. — Lifluence  of  feeling  and  passion  in  litigation,  though 
much  less  than  that  of  the  other  two  elements,  too  much  over- 
looked, §  19.  —  Legal,  evidential,  and  emotional,  the  three 
elements  of  litigation,  §  20.  —  Object  of  right  management  of 
litigation  is  to  have  a  superiority  on  some  or  all  of  the  three 
elements,  §  21.  —  Litigation  contrasted  with  various  games 
and  with  war;  how  good  generals,  players,  and  lawyers  win, 
§  22.  — The  contrast  with  war  stated  at  greater  length,  §§  23- 
27.  —  Conduct  out  of  Court,  or  Preparation,  corresponds  to 
Strategy;  Conduct  in  Court,  to  Tactics;  superior  importance 


xviu  TABLE   OF   CONTENTS. 

of  Strategy  and  Preparation  to  Tactics  and  Conduct  in  Court, 
§§  24,  25.  —  Consideration  of  a  case  offered,  §  26.  —  How  far 
litigation  can  be  illustrated  from  warfare,  §  27.  —  Prepara- 
tion of  cases,  the  first  half  of  litigation  ;  its  greater  impor- 
tance enforced  by  a  contrast  of  two  eminent  lawyers,  §  28.  — 
Conduct  in  Court,  the  second  half,  important,  but  not  so  im- 
portant as  the  first,  §  29.  —  Changes  of  standpoint  from  con- 
sidering the  case  when  offered  to  its  argument,  §  30.  —  Chapter 
on  Character  of  Successful  Lawyer,  §31.  —  Cox's  Advocate, 
§  32.  —  Harris's  Hints  on  Advocacy,  and  Illustrations  in  Advo- 
cacy, §  33.  —  Warren's  Duties  of  Attorneys  and  Solicitors, 
§  34.  —  Gleanings  from  other  books,  §  35.  —  Student's  need  for 
a  treatment  of  Preparation  and  Foi'ensic  Conduct  as  a  whole, 
§  36.  —  Necessity  that  all  practitioners  understand  both  divis- 
ions, §  37.  —  The  Reports  furnish  us  but  little  of  our  mate- 
rials, §  38.  —  Weeks's  Attorneys  at  Law  noticed  in  order  to 
show  the  small  use  we  can  make  of  Reports,  §§  39,  40.  —  The 
•writings  of  authors  and  experience  in  practice  mainly  supply 
our  materials,  §  41.  —  The  use  to  be  made  of  these  two  sources, 
§  42.  —  Origin  and  writing  of  this  book,  §  43.  —  What  the 
author  believes  will  be  its  especial  benefits  to  students  and 
young  lawyers,  §  44.  —  Professional  methods  in  common  use 
to  be  learned  by  student  and  exercised  in  imtil  each  one  will 
be  done  automatically,  §  45. 


BOOK  I. 

CONDUCT  OUT  OF  COURT. 

CHAPTER  I. 

A   CASE   OFFERED. 

Cases  where  clients  can  be  wisely  advised  to  yield  or  to  litigate, 
our  subject,  §  46.  —  An  examination  preliminary  to  advising 
to  be  made,  §  47.  —  Such  examination  for  difficult  rather  than 
for  easy  cases,  §  48.  —  How  the  client's  knowledge  is  to  be 
drawn  out  of  him,  §  49.  —  Quintilian's  directions,  §§  50-52.  — 


TABLE  OF  CONTENTS.  xix 

Comment  upon  them,  §  53.  — Necessary  patience  and  careful- 
ness with  client,  §  5-4.  —  Witnesses  to  be  sifted  well,  §  55.  — 
Importance  of  close  attention  to  documents,  §  56.  —  Illustra- 
tions from  trials  where  party  lost  by  offering  evidence  which 
he  had  not  studied,  §§  57,  58. — Enforcing  duty  of  cautious 
examination  of  accessible  evidence  before  counsel  advises 
action,  §  59. — Two  excerpts  from  Mr.  Warren,  modernizing 
the  quotation  from  Quintilian,  §§  60-62.  —  Duties  of  Eng- 
lish attorneys  good  lessons  to  American  lawyers  meditating 
a  case  offered,  §  63.  —  Hinted  that  the  adverse  case  is  to  be 
conjectured  as  far  as  possible,  §  Qi.  — Case  where  Judge  Cooley 
supposes  an  abstract  of  title  submitted  for  an  opinion,  §  65. 
—  The  lawyer  consulted  must  examine  and  decide  without 
procrastination,  §§  66,  67.  —  Facts  to  be  weighed  and  law 
to  be  considered,  §  68.  —  Points  of  controversy  and  probable 
issues,  §  69.  —  Advice  to  be  according  to  the  apparent  chances 
of  litigation,  §  70.  —  Plan  of  Conduct  hinted  at,  §  71.  —  The 
lawyer,  like  the  general,  acts  on  probabilities,  §  72. — He 
should  resort  to  the  courts  only  when  he  seems  to  have  a  legal, 
evidential,  or  emotional  advantage,  §  73.  —  He  cannot  be 
sure  of  success,  §  74.  —  He  should  be  accurate  in  his  under- 
standing, and  exempt  from  undue  excitement,  §  75.  —  The 
lawyer  who  is  never  dangerous  until  he  has  lost,  §  76.  —  The 
thoroughly  cautious  lawyer  is  the  most  dangerous,  §  77.  —  A 
famous  lawyer  who  carefully  considered  every  case  offered 
him,  §  78.  —  Timidity,  doubt,  and  over-caution  reprehended, 
§§  80,  81.  — Ethics  of  accepting  and  declining  cases,  §§  82-89. 
You  take  ten  cases  you  ought  not,  to  one  that  you  mistakenly 
refuse,  §  90.  —  The  trial  counsel  often  has  to  rely  on  a  junior, 
§  91.  —  Unpopular  cases  of  merit,  §§  92-95.  —  Classified  sum- 
mary of  duties  of  lawyer  before  advice,  §  96.  —  The  minu- 
tiai  belong  to  our  chapters  on  Preparation,  §  97.  —  The  young 
lawyer  must  for  a  while  observe  and  imitate,  and  confer  with 
his  wiser  friends,  §  98. 

CHAPTER  II. 

PRINCIPLES  OF  PREPARATION.  —  PREPARATION  OF  THE  EVIDENCE. 

What  is  non-serial  must  be  treated  serially,  §  99.  —  Much  remains 
to  be  done  which  was  not  foreseen  when  case  was  accepted, 


XX  TABLE  OF   CONTENTS. 

§  100.  —  The  first  aim  of  Preparation  is  to  secure  apparent 
advantages;  —  party's  witnesses,  §  101.  —  Sir  George  Stephen 
as  to  opposition  of  witnesses  to  a  minute  of  their  statements 
being  made,  §§  102,  103.  —  How  to  commit  doubtful  witnesses 
to  their  statements,  §§  101,  105. — Protection  of  written  evi- 
dence, §  106. — Process  for  witnesses  and  documents,  and 
when  you  shall  resort  to  it  or  not,  §§  107,  108.  —  Perpetuation 
of  testimony  of  certain  witnesses,  §  109.  —  To  obtain  addi- 
tional advantages  the  second  object  of  preparation;  further 
study  of  the  evidence,  §  110.  —  Examples  of  procuring  addi- 
tional evidence,  §§  111-113.  —  Third  object  of  preparation  to 
abridge  advantages  of  adversary;  illustrations,  §§  114-116.  — 
Preparation  should  not  injure  the  client;  illustrations,  §§  118, 
119.  —  Cautiqn  necessary  to  avoid  injuring  yourself,  §  121.  — 
You  must  learn  the  secrets  of  the  other  side,  and  how,  §§  121- 
124.  —  How  you  should  meet  the  preparation  of  the  adversary, 
§  125.  —  Concealment  of  your  purposes  and  evidence,  §§  126, 
127.  —  Stratagems,  §  128.  —  Necessity  of  understanding  the 
law  of  evidence,  §  129.  —  Summary  of  essentials  of  prepara- 
tion of  the  facts,  §  130.  —  The  whole  evidence  to  be  collected; 
Mr.  Warren's  advice  to  ocer-prove  rather  than  under-iprove, 
§  131.  —  The  decisive  points  only  to  be  attended  to,  §  132. 

CHAPTER  III. 

PREPARATION  OF  THE  LAW  OF  THE  CASE. 

Preparation  of  the  facts  naturally  precedent  to  that  of  the  law, 
§  133.  —  Some  previous  observation  of  practice  necessary  to 
the  student,  §  134.  —  Facts  more  often  disputed  than  law, 
§§  135,  136. — Great  and  unexpected  successes  occasionally 
won  on  law  points,  §§  137,  138.  —  The  applicable  law  to  be  at- 
tended to  in  preparation  with  care,  §§  139,  140.  —  The  three 
departments  of  American  law,  §  141.  —  Law  seldom  ascer- 
tained by  theorizing;  it  is  to  be  had  from  the  sources,  §  142.  — 
Usually  three  classes  of  law  questions  in  cases,  —  the  first  be- 
ing as  to  the  substantive  right  of  the  client;  illustrations  of 
the  first,  §§  144,  145.  — The  law  giving  the  right  to  be  scruti- 
nized, §  146.  —  Where  the  law  is  difficult,  §  147. — Questions 
as  to  proper  remedy  in  the  second  class,  §  148.  —  Various  reme- 
dies, and  how  they  are  to  be  resorted  to,  §  149.  —  Illustrations, 


TABLE  OF  CONTENTS.  xxi 

§§  150-154.  —  Summary  as  to  remedy,  §  155.  —  Questions  aa 
to  evidence  belong  to  third  class;  how  they  should  be  treated, 
§  156.  — Law  certainly  against  the  practitioner,  that  certainly 
for  him,  and  that  which  is  doubtful,  encountered  through  the 
entire  course  of  preparation,  §  157.  —  His  duty  as  to  each  one 
of  the  three  kinds,  §  158.  —  The  few  cases  without  precedent, 
§  159.  —  Delicacy  of  asking  for  a  ruling  which  is  au  innova- 
tion, §  160.  —  Effort  of  born  lawyer  always  to  plant  himself  on 
sound  law,  §  161.  —  Over-refinement  in  selection  of  law  points 
to  be  avoided,  §  162.  —  The  authorities  settling  the  different 
points  which  you  see  will  be  mooted  to  be  weighed  and  noted, 
§  163.  —  Over-logical  views  to  be  eschewed,  and  the  average 
professional  mind  sounded  as  to  doubtful  subjects,  §  164.  — 
The  pleadings,  §  166.  —  Demurrers,  §  167. 


CHAPTER  IV. 

OTHER  PARTICULARS  OF  PREPARATIOX. 

The  emotional  element,  §  168.  —  The  modern  does  not,  like  the 
ancient  advocate,  aim  consciously  to  stir  the  passions,  §  169.  — 
Where  a  decided  leaning  of  the  community  must  be  recog- 
nized in  the  preparation,  §  170.  —  The  case  which  at  first 
appeared  too  old,  §  171.  —  The  emotional  resources  both  of 
yourself  and  your  adversary  never  to  be  overlooked,  §  172.  — 
Filing  of  your  pleadings,  proper  service,  notices,  §  174.  — 
Agreements  of  counsel,  §  175.  —  Things  to  be  done,  such  as 
the  removal  of  encumbrances,  §  176.  —  The  ablest  of  the  coun- 
sel should  investigate  the  case  and  classify  its  details;  inferior- 
ity of  English  system,  where  counsel  are  never  brought  in 
contact  with  party  or  witnesses,  §  177.  —  David  Paul  Brown's 
comparison  of  the  English  and  American  systems,  §§  178, 
179.  —  Great  need  that  the  leading  counsel  confer  with  party 
and  witnesses,  §  180.  —  Choate's  seeing  the  impressive  be- 
havior of  a  client,  §§  181,  182.  — Inferiority  of  English  coun- 
sel in  the  private  examination  of  witnesses,  §  183.  —  The 
division  of  labor  in  England  between  attorney  and  counsel 
unnatural  and  irrational,  §  184.  —  Our  young  lawyers  should 
aspire  to  make  both  good  attorneys  and  good  counsel,  §  185.  — 
Plurality  of  counsel,  §  186.  —  The  associates  should  be  prop- 
erly placed;  the  tact  of  Burr,  §  187. — Lord  Bacon's  threefold 


xxu  TABLE  OF   CONTENTS. 

division  of  business,  §  188.  —  Consultations  between  associates 
should  be  frequent,  and  tlieir  disclosures  frank,  §  189.  —  Duty 
of  associates  to  one  newly  employed,  §  190.  —  How  to  treat 
your  a.ssociate,  §  191.  — Local  counsel,  §  192.  —  Conclusion  as 
to  plurality  of  counsel,  §  193.  —  Practitioner  should  have  a 
definite  purpose  in  everything,  §  194.  —  Premeditation  not  to 
be  too  prolonged;  rapid  action  necessary,  §§  195,  196.  —  Burr's 
"  Never  do  to-day  what  you  can  as  well  do  to-morrow,"  good, 
§  198.  —  How  forethought  and  promptness  to  be  reconciled, 
§  199.  —  The  lawyer  preparing  should  not  be  flurried  or  vision- 
ary, §  200.  —  Patient  and  never  remitted  attention  a  potent 
virtue,  §  201.  — The  lawyer  should  carry  his  cases  with  him 
everywhere,  and  be  always  able  to  stand  a  Socratic  cross-exam- 
ination upon  them,  §  202.  — Accurate  and  well-in-hand  knowl- 
edge of  the  case  the  grand  result  of  thorough  preparation, 
§  203.  —  The  talents  of  perversion  on  the  other  side  of  no 
avail,  §  204.  —  Choate's  habitual  preparation,  §§  205-210.  — 
Burr's,  §  211.  —  Bad  against  good  preparation,  §  212.  —  But 
everything  cannot  be  foreseen  and  provided  for,  §  213.  —  He 
who  believes  that  Providence  sends  him  only  good  cases,  con- 
trasted with  the  true  lawyer,  §  214. 


CHAPTER  V. 

PLAN   OF   CONDUCT. 

Great  importance  of  subject;  it  is  the  highest  point  of  view  in 
the  preparation,  §  215.  —  The  plan  keeps  even  pace  with  the 
preparation,  but  its  final  construction  is  the  last  work,  §  216.  — 
Use  of  word  as  contrasted  with  "line"  and  "theory  "  justi- 
fied, §  217.  —  The  right  plan  assures  most  and  risks  least, 
§  218.  —  Napoleon's  saying,  that  the  whole  art  of  war  consists 
in  being  the  stronger  on  a  certain  point,  illustrated  by  battle 
of  Marathon,  where  Miltiades  evaded  the  onset  of  the  enemy's 
choice  troops,  §§  219,  220. —  The  strength  of  the  enemy  di- 
rectly engaged  by  Epaminondas  at  Leuctra  with  success,  §  221. 
—  The  circumstances  vindicate  each  plan,  §  222.  —  Choate 
always  had  a  plan,  §  223.  —  An  example  from  his  practice, 
§  224.  —  A  simple  plan  which  prevailed  against  an  adversary 
seeming  as  strong  as  the  Spartans  at  Leuctra,  §  225.  —  Mag- 
nificent results  often  follow  simple  plans ;  —  looking  and  seeing 


TABLE  OP  CONTENTS.  xxiii 

for  one's  self  the  basis  of  the  general's  and  lawyer's  genius, 
§  226. — Simple  and  complex  plans  contrasted,  §  227.  —  A 
complex  plan  which  involved  different  points  of  law  and  fact, 
§§  228-231.  —  The  first  sort  of  simple  plan  being  where  the 
issue  tendered  is  accepted,  §  232.  —  The  second  is  where  the 
issue  tendered  is  evaded  by  presenting  another  on  which  you 
think  you  are  the  stronger;  instance  from  Burr's  practice, 
§  233.  —  Evasion  of  an  issue  of  law  tendered,  §  234.  —  The 
complex  plan  glanced  at  again,  §  235.  —  The  plan  should  al- 
ways be  as  simple  as  it  can  be  made  without  judging  too 
severely  against  client,  §  236.  —  Covering  weak  points ;  exam- 
ples of  successful  concealment,  §  237.  —  Where  the  weakness 
cannot  be  concealed;  Choate's  plan  for  defence  of  Prof.  Web- 
ster, §§  238,  239.  —  Where  a  mistrial  rescued  a  party  from 
a  great  difficulty,  §  240.  — Weakness  often  to  be  concealed  by 
reticence,  bluff,  feints,  or  other  ruses;  and  a  good  case  is  some- 
times to  be  saved  by  wiles  and  stratagems,  §  241.  —  The  emo- 
tional element  of  litigation ;  persons  and  acts  distinguished  as 
causes  of  favor  or  disfavor,  §  242.  —  Emotional  advantages  to 
be  supported  by  apparent  merit  in  law  or  fact,  and  not  to  be 
urged  immoderately,  §  243.  —  Effectiveness  of  moderation 
where  the  facts  showed  that  a  lady  had  fraudulently  altered  a 
paper,  §  244.  —  Danger  of  appearing  to  persecute,  §  245.  — 
Guarding  the  parts  of  your  case  which  are  exposed  to  the  cen- 
sure of  the  feelings,  §  246.  — Always  scheme  to  have  the  feel- 
ings excited  by  the  case  help  your  side,  §  247.  — When  secrecy 
is  right  or  not,  §§  248,  249.  —  Provision  in  plan  for  new  trial 
in  case  you  lose;  examples,  §§250-252. — The  lawyer  who  is 
expert  in  setting  aside  verdicts,  §  253.  —  Whether  conduct 
shall  be  bold  or  not,  §  251.  —  Difference  in  the  spirit  of  offence 
and  defence,  §  255.  —  Essentials  of  good  defence,  §  256.  —  The 
aggressive  defence,  §  257.  —  Advantages  of  the  aggressive  and 
of  holding  the  initiative,  §  258.  —  Summary  as  to  aggressive  and 
defensive,  §  259.  —  The  line  of  defence  in  cases  exciting  much 
public  feeling  should  sometimes  be  disclosed,  §§  260,261. — 
A  mistake  in  not  using  the  privilege  of  suppressing  inves- 
tigation, §  262.  —  Where  your  case  is  hard  to  defend  but 
your  client  is  influential,  do  not  give  the  adverse  witnesses 
early  opportunity  to  testify,  §  263.  —  Subject  of  continuances 
commenced,  §  264.  —  If  you  defended  the  workman  charged 
with  stealing  from  the  cash-drawer,  you  should  wait  on  devel- 


xxiv  TABLE  OF  CONTENTS. 

opments,  §  265.  —  Other  cases  in  which  you  should  wait, 
§  2G6.  —  Provision  to  be  made  against  contemplated  continu- 
ance of  adversary,  §  267.  —  Slowness  to  try  cases  not  to  be  cul- 
tivated, §  268.  —  Remedies  as  connected  with  subject  of  this 
chapter,  §  269.  —  Groups  of  connected  cases,  where  a  special 
one  should  be  tried  first  if  possible,  §  270.  —  Examples,  §§  271 
-273.  —  Such  cases  require  careful  attention,  and  the  subject 
is  too  much  neglected,  §  27-i.  —  All  possible  alliances  for  your 
client  to  be  secuied,  §  275.  — •  Marshalling  the  proofs;  the  coun- 
sel for  the  State  who  blundered  when  he  secured  the  conclusion 
for  himself  by  holding  back  some  of  his  evidence,  §§  276,  277.  — 
When  you  are  to  put  in  more  and  when  less  evidence  before 
you  rest,  §  278.  —  Comparative  value  of  the  right  to  the  last 
word  and  of  the  first  impression  with  good  evidence,  §  279.  — 
The  plan,  especially  in  complicated  cases,  should  be  drafted; 
which  can  be  largely  done  in  arranging  the  proofs,  §  280.  — 
The  essence  of  the  lawyer  is  in  his  fashioning,  anticipating, 
and  contriving  as  to  cardinal  points,  §  281.  —  Procui'ement  of 
special  legislation,  §  283.  —  Arbitrations  and  references,  §  284. 
—  Amicable  settlements  recommended,  and  how  the  lawyer 
should  act  in  them,  §§  285,  288. 

CHAPTER  VI. 


Why  the  subject  receives  a  chapter,  §  287.  —  Too  restricted  sense 
of  "  brief,"  as  the  word  is  used  in  America,  §  288.  —  Contents 
of  an  English  brief  according  to  Sellon  and  Tidd,  §  289.  — 
Such  a  brief  sets  forth  the  whole  preparation,  §  290.  — Policy 
of  such  a  brief  advocated;  —  exceptional  memories,  §291. — 
Your  memoranda  to  be  digested,  §  292.  —  Great  ability  neces- 
sary to  make  a  good  brief  as  set  forth  by  Mr.  Warren,  §  293.  — 
A  brief  is  gradually  made  up,  §  294.  —  Advice  of  Mr.  Bishop 
as  to  notes  of  authorities,  §  295.  —  Whether  the  pleadings 
should  be  copied  or  abridged,  §  296.  —  The  statement  of  each 
party's  case  to  be  accurate,  §§  297,  298.  —  The  proofs  to  be 
marshalled  and  a  list  of  witnesses  to  be  made,  §  299.  —  Copies 
and  abstracts  of  documentary  proofs,  §  300.  —  One  who  habitu- 
ally pre-arranges  his  proofs  on  paper  rarely  stops  shoi't  of 
making  out  his  case  at  the  trial,  §  301.  — Questions  which  you 


TABLE  OF  CONTENTS.  xxv 

anticipate  may  arise  collaterally,  to  be  provided  for,  §  302.  — 
Cautions  against  apprehended  danger;  advice  of  Mr.  Warren, 
§  303.  —  All  omissions  io  be  supplied  ;  when  a  brief  is  perfect, 
§  304.  —  Draft  of  plan  of  conduct,  §  305.  —  Voluminous  brief 
to  be  indexed,  §  30G.  —  Detailed  directions  of  Mr.  Warren, 
§§  308-314.  —  As  to  law  points,  §  315.  —  American  neglect  of 
briefs  earnestly  deprecated,  §  310.  —  Your  brief  can  be  easily 
made  by  keeping  your  accumulating  papers  and  memoi'anda 
together  and  in  right  order,  the  final  statement  of  case  and 
last  draft  of  plan  being  intercalated  at  the  close  of  the  prepara- 
tion; there  is  no  Procrustean  model  of  briefs,  §317. — You 
are  not  to  be  slavishly  dependent  on  your  brief,  §  318. 


BOOK  II. 

CONDUCT  IN  COURT. 

CHAPTER  VII. 

INTRODUCTORY. 

Correspondence  of  subject  of  this  Book  to  Tactics,  §  319.  —  Object 
of  Conduct  in  Court ;  talents  for  managing  a  trial  contrasted 
with  those  of  preparation,  §  320.  — Greatest  ability  for  trying 
rarely  united  with  the  greatest  for  preparing,  §321.  —  Un- 
anticipated occurrences  of  the  trial,  and  the  faculty  of  extem- 
poraneous action  necessary  for  dealing  with  them,  §  322.  — 
Importance  of  precedent  preparation  ;  restatement  of  its  essen- 
tial parts,  §  323.  —  The  subjects  of  oiu-  two  Books  run  into 
each  other  in  the  plan  of  conduct;  preparation  is  to  be  made 
no  more  than  the  fulcrum  of  attack  or  defence,  §  324.  —  Spirit 
of  proper  conduct  of  a  trial,  §  325.  —  Leading  objects  of  con- 
duct in  court  classified,  §  326.  —  Consultation  of  counsel  on 
the  eve  of  trial,  §§  327,  328.  —  Selecting  the  jury;  several 
illustrations,  §§  329-334. 


XXVI         TABLE  OF  CONTENTS. 
CHAPTER  Vni. 

OPENING   THE   PLEADINGS   AND   OPENING  THE   CASE. 

In  England  the  junior  counsel  for  plaintifE  opens  the  pleadings  and 
the  leader  opens  the  case;  in  America  both  openings  are  usu- 
ally by  the  same  counsel,  and  often  by  the  junior,  §  335. — 
Mr.  Cox's  directions  as  to  opening  the  pleadings,  §§  336,  337. 

—  His  directions  as  to  opening  the  plaintiff 's  case,  §§  338-345. 

—  Teachings  of  Mr.  Harris,  §  346.  —  Opening  of  facts  more 
important  in  England  than  here;  but  it  is  very  important 
here,  §  347.  —  The  opening  of  the  pleadings  shows  the  issues; 
how  it  prepares  for  the  defendant's  cross-examination,  §  348.  — 
The  reading  of  voluminous  pleadings  should  be  preceded  by 
an  oral  synopsis,  §  349.  —  Requisite  carefulness  with  the  judge 
on  novel  law  points,  §  350.  — Treatment  of  the  proofs;  Cock- 
burn's  opening  speech  in  trial  of  Palmer,  §  351.  —  State  your 
propositions,  and  then  outline  your  proofs  of  each,  §  352. —  Scai-- 
lett's  opening;  excellent  short  openings,  §  353.  —  Defendant's 
opening  of  the  facts  in  America,  §  354.  —  How  a  progressive 
development  of  the  evidence  aids  an  opening,  §  355.  —  Prin- 
ciples of  opening  stated  by  Gains  in  a  few  words,  §  356. 

CHAPTER  IX. 

BEGINNING    OF    CONDUCT    OF    THE    EVIDENCE.  —  THE    EXAMINA- 
TION  OF    THE   party's   WITNESSES. 

Affirmant  to  make  out 2)ri7na  facie  case;  defendant  avoids  its  effect; 
plaintiff's  rej)ly,  defendant's  rejoinder,  and  so  on;  evidence 
both  oral  and  written,  §  357,  —  Examination  of  plaintiff's 
witnesses  in  England,  the  junior  usually  taking  the  first  wit- 
ness ;  but  our  subject  is  the  direct  examination  on  both  sides, 
§  358.  —  In  America,  who  shall  examine  is  settled  by  agree- 
ment, or  by  direction  of  the  leader;  the  counsel  most  familiar 
with  narrative  of  a  particular  witness  should  usually  examine; 
sometimes  that  one  who  is  to  make  the  principal  argument 
should  not  examine  at  all,  §  359.  — Material  allegations  of 
plaintiff's  pleadings  to  be  proved;  while,  as  a  rule,  the  unfa- 
vorable is  to  be  avoided,  yet  adverse  facts  known  to  the  other 


TABLE  OF  CONTENTS.  xxvii 

side  had  better  be  drawn  out,  §  360.  —  Tlie  average  witness  is 
our  first  concern ;  question  him  in  every-day  language ;  properly 
start  him,  and  then  let  him  tell  his  story  in  his  own  way;  if  not 
self-possessed,  reassure  him  by  beginning  with  small  details, 
§  361.  —  Leading  questions  generally  to  be  avoided;  a  remind- 
ing instead  of  leading  question,  §  362.  —  Mr.  Cox  as  to  leading 
questions,  §§  363,  361. — Mr.  Cox  exaggerates  the  difficulty; 
example  of  a  reminding  question  which  does  not  lead;  avoid- 
ance of  leading  questions  to  your  witnesses  in  your  chambers, 
§  36.5.  —  Questions  should  be  short  and  easily  intelligible;  Mr. 
Harris's  examples  of  bad  questions,  §  366.  —  Mr.  Harris's  ad- 
vice as  to  avoiding  interruptions,  watching  to  keep  the  story  free 
from  extraneous  matter,  and  adopting  commonplace  questions, 
§  367.  — Never  cross-examine  your  friendly  witness;  instance; 
how  to  keep  the  witness  from  unfavorable  statements,  §  368.  — 
Heedfulness  and  deliberation;  redundant  questions;  main  cur- 
rent of  transaction  to  be  followed;  important  facts  often  to  be 
brought  out  independently;  omissions  to  be  supplied ;  witness 
to  be  sifted,  and  what  he  says  made  impressive  and  kept  from 
hurting  you  and  helping  the  adversary,  §  369.  —  Exhaust  the 
witness's  knowledge  so  as  to  avoid  recalling  him  before  you 
rest,  §  370.  — Timid  and  confused  witnesses,  §  371.  — They 
should  be  prepared  out  of  court;  rehearsals  and  cross-exam- 
inations in  your  office,  §  372.  —  Extra-curial  preparation  by 
Daniel  Webster  of  a  shrinking  and  sensitive  witness,  §  373.  — 
Mr.  Cox  as  to  the  stupid  witness,  §  374.  —  Examiner  should 
not  question  from  a  region  above  comprehension  of  dull  wit- 
ness, §  37.5. — "Witnesses  whom  you  must  restrain,  §§  376, 
377.  —  David  Paul  Brown  as  to  hostile  witness,  §  378.  —  How 
you  can  arm  yourself  against  treachery,  §  379.  —  Mr.  Cox  as 
to  the  hostile  witness,  §  380.  —  Premeditated  sifting  of  hostile 
witness;  example;  you  really  cross-examine  him,  §  381.— 
Keep  your  composure  when  answers  are  adverse,  §  382.  —  Hos- 
tile witness  to  be  called  only  when  he  is  indispensable,  §  383.  — 
Conflicts  in  your  testimony  to  be  avoided,  both  by  attention  to 
examination  and  by  preparation,  §  385.  —  Example  of  a  dam- 
aging conflict  which  could  have  been  avoided,  §  386. — In 
direct  examination,  the  plaintiff  charges  the  defendant,  who 
next  discharges  himself;  when  plaintiff  charges  and  the  de- 
fendant discharges  again,  over  and  over  in  various  alternations, 
—  the  real  end  of  direct  examination  being  that  the  party  is  to 


xxviu  TABLE  OF   CONTENTS. 

make  out  his  charge  or  discharge  before  he  rests,  §  387. — 
Quintilian  and  Englisli  writers  ignore  character  of  average 
witnesses  and  overrate  cross-examination;  the  decisive  facts 
are  generally  proved  in  direct  examination,  §  388.  —  Bring 
out  these  facts  completely  and  impressively,  §  389. 

CHAPTER  X. 

CROSS-EXAMINATION. 

Whether  you  should  cross-examine  at  all ;  cross-examination  over- 
prized by  the  inexperienced,  §  390.  —  Also  by  many  writers, 
§  391.  — Scarlett  usually  cross-examined  but  little,  and  only  to 
enforce  the  facts  on  which  he  relied,  §  392.  —  Average  wit- 
nesses and  common  methods  to  be  first  treated,  393.  —  Charac- 
ter of  the  witness  always  to  be  attended  to,  §  394.  —  Importance 
of  pi'evious  acquaintance  with  narrative  of  adverse  witness; 
many  other  things  to  be  learned  beforehand,  §  395.  —  You 
cross-examine  three  kinds  of  witnesses :  one  kind  whose  ver- 
sion you  accept;  another,  whose  testimony  you  avoid  without 
attacking  his  veracity;  and  the  third,  whose  testimony  you 
show  cannot  be  credited ;  there  are  really  but  two  kinds  of  cross- 
examination, —  one  intended  to  elicit  friendly  evidence,  and 
the  other  to  attack  the  witness,  §  396.  —  Your  objects  with  the 
witness  whose  version  you  accept  are  to  have  him  finish  his 
incomplete  presentation,  and  to  make  him  re-enforce  your 
proofs,  §  397.  —  Privilege  of  direct  examiner  to  put  what  ques- 
tions he  pleases  and  confine  the  witness  to  answers,  and  his  con- 
sequent omission  to  prove  that  which  favors  you,  §  398.  —  You 
will  be  prompted  by  previous  information,  the  natural  proba- 
bilities of  the  transaction,  the  friendship  of  the  witness  to  your 
client,  and  his  manner,  §  399.  — When  your  case  is  very  weak 
you  may  be  reckless  in  extorting  a  full  statement ;  examples, 
§§  400,  401.  —  Where  you  weaken  the  force  of  what  was  proved 
in  the  direct,  or  prepare  for  your  own  evidence,  or  show  the 
witness  to  be  mistaken;  examples,  §§  402-404.  —  Requisite 
talent  for  fashioning  the  narrative  so  that  it  may  be  overborne 
by  your  testimony,  §  405.  —  Relationship,  friendship,  and  other 
causes  that  bias,  §  406.  —  Where  you  essay  to  show  that  the 
truthful  witness  is  mistaken,  according  to  Mr.  Cox,  §  407. — 
Comments  on  the  passage,  §  408.  —  Instances  of  having  wit- 


TABLE  OF  CONTENTS.  xxix 

nesses  to  demonstrate  mistakes,  §§  409,  410.  —  Where  you  have 
the  witness  to  prove  facts  in  your  favor,  —  the  most  effective  of 
all  cross-examination,  §  411.  —  This  sort  most  in  use  by  good 
practitioners;  its  scope  wider  than  appears  at  first,  §  412. — 
Cross-examining  the  witness  as  to  whom  you  are  uninformed, 
§  413.  —  Wiien  you  have  cause  to  suspect  his  veracity,  test  him 
by  a  comparison  with  the  other  testimony,  §  414.  —  Conclusion 
as  to  witness  you  do  not  attack ;  you  really  make  an  ally  of 
him,  §  415.  —  The  witness  whom  you  intend  to  discredit; 
wliere  you  prepare  for  proving  contradictory  statement,  §  41 G. 
This  attack  ought  to  be  in  a  material  matter;  it  should  be  pro- 
vided for;  how  the  resources  of  contradiction  multiply  when  trial 
is  delayed,  §  417. —  Opportunity  afforded  by  witness  having 
testified  before  on  same  subject,  §  418.  —  "Where  you  draw  out 
statements  to  be  disproved  by  the  other  testimony ;  this  sort 
of  impeachment  not  as  fully  attended  to  as  it  ought  to  be, 
§  419.  —  Developing  conflicts  in  the  adverse  testimony,  §  420. 
Ordering  the  witnesses  out  of  court;  when  it  is  to  be  done 
and  when  not,  §§  421,  422.  —  How  a  witness  was  commit- 
ted to  statements  which  he  unwittingly  had  his  own  family 
to  contradict,  §  423. — Where  you  try  to  entrap  into  such 
self-contradiction  or  oppugnancy  to  known  facts  as  will  dis- 
credit, according  to  Mr.  Cox,  §§  424-430.  —  A  still  wider 
range  of  sifting  counselled;  illustration  from  Brougham's 
cross-examination  of  Majocchi,  §431. — Williams's  cross-ex- 
amination of  Demont,  §  432.  —  Rareness  of  such  feats;  use  of 
the  examples,  §  433.  —  Where  perjury  is  palpably,  not  infer- 
entially,  detected;  two  examples,  §§  434-436.  — Such  blunders 
of  witnesses  sometimes  overlooked,  §  437.  —  Two  instances 
of  perjury  palpably  detected  by  Daniel  Webster,  §§  438,  439. 
—  Untruthfulness  of  witness  seldom  shown  except  by  leading 
him  to  manifest  partisanship,  or  to  tell  gross  improbabilities, 
§  440.  —  Summary  of  objects  of  cross-examination,  §  441. — 
Proper  manner  and  self-restraint  of  cross-examiner,  §442. — 
When  and  how  the  cross-examiner's  object  should  be  con- 
cealed, §  443.  —  When  you  must  take  pains  to  be  intelligible, 
according  to  Quintilian,  §  444.  —  Do  not  prove  the  adverse 
case,  §445.  —  Unfavorable  answers  to  be  avoided,  §  446. — 
Refrain  from  opening  new  matter  that  may  hurt,  §  447.  — 
Do  not  press  a  reluctant  witness  too  hard,  §  448.  —  Repartees 
of  witnesses  ;   one  elicited  by  Choate,  §  449.  —  Behavior  of 


XXX  TABLE  OP  CONTENTS. 

examiner  on  such  occasions  advised  by  Mr.  Cox,  §  450.  — 
Excellence  of  Brown's  Golden  Rules,  §  451.  —  Those  for  cross- 
examination  quoted,  §§  451,  452. 


CHAPTER  XI. 

RE-EXAMINATION.  —  CONCLUSION  OF  THE  CONDUCT  OP 
EVIDENCE. 

In  England  the  leader,  here  the  examiner  in  chief,  usually  re-exam- 
ines the  witness ;  the  counsel  best  acquainted  beforehand  with 
his  testimony  should,  as  a  rule,  perform  the  duty,  §  453.  — Ac- 
coi'ding  to  Mr.  Cox,  the  object  is  to  obtain  an  explanation  of  what 
has  been  said  in  cross-examination,  §  454.  —  One  purpose  is  to 
prevent  the  adversary's  distorting  your  witness's  testimony  by 
garbling  questions  and  questions  to  which  he  can  only  answer 
yes  or  no,  §  455.  — •  In  his  bewilderment,  heedlessness,  or  fright 
under  cross-examination  the  witness  may  have  made  state- 
ments requiring  correction,  §  456.  —  Importance  of  previously 
acquired  familiarity  with  the  narrative,  §  457.  —  Mr.  Cox  on 
the  mode  and  scope  of  re-examination,  §  458. — Mr.  Harris 
like  Mr.  Cox,  exaggerates  the  usual  effects  of  cross-examina- 
tion, §  459.  — The  real  effects  of  cross-examination  and  what 
.  of  repair  and  restoration  you  can  do,  §  460.  —  Mr.  Cox  advises 
when  to  attempt  explanation  and  when  not,  §461. — As  to 
new  matter  introduced  by  the  cross-examination,  §  462.  —  Mr. 
Cox,  as  to  eliciting  repetitions  of  the  more  important  parts  of 
the  evidence  in  chief,  §  463.  —  Excellent  summary  by  Mr. 
Harris;  close  of  systematic  presentation  of  examination  of  wit- 
nesses, §  464.  —  Many  writers  erroneously  pronounce  him  to  be 
the  best  examiner  who  most  successfully  hides  unfavorable 
truth,  §  465.  —  Objections  to  questions,  when  to  be  repressed 
and  when  urged,  §  466.  — Pleasantness  of  manner  in  examiner 
inculcated,  §  467.  —  Providing  new  evidence  during  a  trial, 
§  468.  —  Where  Choate  reopened  the  evidence  with  advan- 
tage, §  469.  —  What  you  are  to  do  when  surprised  by  unex- 
pected testimony,  §  470.  —  Whether  or  not  you  shall  introduce 
certain  topics  into  which  your  adversary  otherwise  cannot  go, 
§  471.  —  Example  of  a  defendant's  going  too  far  with  his  evi- 
dence, §  472.  —  All  counter  proof  demanded  to  be  made  if  pos- 
sible, §  473.  —  Preparation  not  to  be  servilely  relied  on,  §  474. 


TABLE   OF   CONTENTS.  xxxi 

—  Importance  of  patience  and  self-possession,  §§475,470. — 
David  Paul  Brown,  as  to  importance  of  examination,  §  477.  — 
The  examination  is  tlie  best  which  produces  the  greatest  weight 
of  supporting  and  defending  proof,  and  presents  it  most  im- 
pressively and  intelligibly,  §  478. 


CHAPTER  XII. 

NOTE-TAKING. 

English  superiority  in  the  matter  of  note-taking  during  the  trial; 
directions  of  Mr.  Cox,  §  479.  — The  substance  of  the  evidence 
to  be  taken  down;  the  efficient  long-hand  reporter,  §480. — 
You  cannot  I'eport  the  answers  to  your  questions;  generally  the 
notes  should  be  taken  by  a  counsel  who  does  not  examine, 
§  481.  —  Points  of  yourself  and  adversary,  his  authorities,  and 
the  action  of  the  court  to  be  noted,  §  482.  —  Great  superiority 
of  correct  notes  as  compared  with  memory,  §  483.  — The  infe- 
rior of  two  lawyers  had  the  quicker  apprehension,  §  484.  — 
Habit  of  Choate,  §  485.  —  Indispensableness  of  note-taking  to 
the  lawyer  who  must  master  every  detail,  §  486.  —  Reviewing 
and  digesting  the  notes  during  the  trial,  §  487.  — You  should 
take  notes  even  if  you  can  have  a  copy  of  the  official  report; 
growing  importance  of  stenography  ;  great  things  can  be  done 
in  long-hand,  §  488. 


CHAPTER  Xm. 

ARGUMENT. 

We  begin  with  argument  of  fact,  the  character  of  all  cases  being 
given  by  the  facts,  §  490.  —  Usually  your  effort  with  the  jury 
is  to  convince  them  by  a  dissection  of  the  evidence  that  your 
case  is  better  than  the  adversary's,  §  491. — The  items  sug- 
gested by  the  evidence  as  what  you  can  probably  hold,  and  the 
grounds  on  which  you  will  claim  them,  now  your  business,  and 
not  the  issues  in  the  record,  §  492.  — You  are  to  sustain  the 
theory  of  your  side  and  oppugn  the  adversary's ;  your  skeleton 
should  duly  order  what  you  are  to  say ;  begin  with  central  posi- 
tions and  place  the  more  important  ones  first,  §  493.  —  The 


5CXX11  TABLE  OF   CONTENTS. 

best  verdict  to  be  expected  is  your  proper  object,  §  494.  — Your 
progress  is  through  affirmative  and  negative  propositions;  how 
circumstances  suggest  where  you  shall  begin,  §  495.  —  Alter- 
nation of  affirmative  and  negative  propositions  soundly  taken, 
§  496.  —  All  not  pl.ansibly  favored  by  the  evidence  to  be  es- 
chewed, §497. — The  maintaining  proofs  to  be  stated  in  the 
skeleton  under  eacli  proposition;  the  adversary's  strong  points 
to  receive  special  attention,  §  498.  —  Exhaust  the  evidence  of 
both  sides,  noting  everything  material  for  or  against  you, 
§  499.  — Your  legal  positions  and  authorities,  §  500.  — Your 
notes  should  be  merely  mnemonic,  §  501.  —  Better  to  write 
it  out  than  to  stop  with  the  mental  construction  of  the  skeleton 
of  your  speech,  §  502. — The  skeleton  being  finished,  the 
proper  beginning  of  the  speech  is  to  display  the  real  questions, 
§  503.  —  When  the  next  step  will  be  the  consideration  of  your 
case  or  of  the  opposite,  §  504.  —  How  best  to  use  the  first  at- 
tention of  the  jury,  §  505. — The  immaterial  to  be  noticed 
only  wlien  you  see  it  has  hurt;  what  practically  helps  you  to 
the  verdict  is  your  only  concern ;  how  to  handle  your  different 
positions,  §  506.  —  Commencement  and  general  arrangement 
being  settled,  the  first  thing  as  to  the  facts  is  to  suggest  all 
the  evidence  pertinent  to  the  particular  topic;  your  statement 
always  to  be  accurate ;  how  to  treat  the  adversary's  misstate- 
ment, §  507.  —  In  supporting  a  proposition  you  gather  the 
proper  proof  from  all  quarters,  and  you  must  truly  present  and 
criticise  the  counter  evidence,  §  508.  — The  usual  attacks  on 
evidence  are  that  it  does  not  prove  the  point,  is  improbable,  or 
is  outweighed;  which  you  are  to  fend  off  from  your  side  and 
make  against  the  other;  when  the  first  attack  is  overstrained  or 
too  logical,  §  509.  — Too  much  heedless  challenge  of  testimony 
on  the  ground  of  improbability,  §  510.  —  That  it  is  outweighed, 
the  most  generally  successful  criticism  of  testimony,  §  511.  — 
Show,  if  you  can,  that  the  conflict  with  your  evidence  is  appar- 
ent only ;  your  difficulty  where  honest  witnesses  or  strong  facts 
oppose  you,  §  512.  — Three  illustrations  of  the  decisive  char- 
acter of  special  facts  in  conflicting  evidence,  §§  513-515.  —  At 
nearly  every  turning-point  of  a  case  there  is  a  decisive  fact  for 
the  advocate  to  show  in  its  full  force;  and  there  is  nearly 
always  the  right  view  which  reconciles  a  mass  of  details,  §  516; 
Importance  of  obtaining  favorable  instructions  from  the  court; 
how  to  discover  his  leaning,  §  517.  —  When  the  leaning  is  ad- 


TABLE  OF   CONTENTS.  xxxiii 

verse,  what  you  are  to  do,  §  518.  — Requests  for  instructions; 
•when  your  question  is  novel  or  abstruse;  wliere  the  court  gives 
no  intimation,  §  519.  — The  range  of  a  law  argument  from 
Binney's,  of  deep  learning  and  research,  in  Vidal  v.  Girard's 
Executors,  to  Webster's  triumphant  appeal  to  reason  alone,  in 
Gibbons  v.  Ogden,  §  520.  —  Help  of  favorable  intimations 
during  argument;  also  of  favorable  instructions  afterwards; 
the  lawyer  who  invoked  tlie  jury  to  decide  his  law,  §  5'21.  — 
Presenting  the  best  reasons  from  the  evidence  and  law  for  ver- 
dict claimed,  the  staple  of  the  happiest  speaking;  illustrations, 
§  522,  —  Moderation  recommended;  vanquish  the  strength  of 
the  adversary  overstated  by  yours  understated ;  Scarlett's  tact 
in  leaving  by  his  understatement  the  jury  to  make  discoveries 
of  stronger  reasons  for  his  case  than  he  had  suggested,  §  523. 

—  You  are  to  be  fair  to  both  sides,  and  your  propositions  and 
arguments  ought  to  be  such  as  will  natux'ally  find  favor  with 
the  multitude,  §  524^.  —  The  strong  men  who  are  over  positive 
and  intolerant  of  difference,  §  525.  —  AVhat  adverse  points  are 
to  be  ignored,  §  52G. — ^Illustration  from  Choate's  practice; 
Lord  Bacon  as  to  dissimulation,  §  527.  —  Fine  speaking  to  be 
avoided,  lively  but  not  heated  discussion  to  be  cultivated, 
and  your  reasoning  should  not  be  over  refined  or  too  deep, 
§  528.  —  Acrimony  usually  impolitic,  §  529.  —  When  ridicule 
and  irony  in  place,  and  their  potency,  §  530.  —  Effectiveness  of 
wit  and  humor;  illustrations,  §§  531-533.  —  Harm  of  irrelevant 
wit  and  humor,  §  534.  —  Value  of  preserving  composure  and 
alertness  of  the  faculties;  examples  of  escape  from  exigent 
straits,  §§'536-538. — Favorable  and  unfavorable  prejudices, 
§  539.  —  Reliance  on  the  lower  passions  and  feelings  not  to  be 
cultivated,  §  540. — The  emotions;  example  of  exciting  one 
prompted  by  the  circumstances  of  the  case,  §  511.  —  The  great- 
est exploits  of  the  advocate  are  but  the  revelation  of  the  real 
facts  to  both  understanding  and  heart,  §  512.  —  Several  duties 
of  associates,  §  543.  —  Long  or  short  speaking,  §  544.  —  Unan- 
swerableness  is  the  greatest  triumph  of  a  speech;  how  it  is 
won,  §  545.  —  When  better  to  forego  argument,  §  546.  —  Power 
and  influence  of  forensic  speaking  not  to  be  overrated,  §  547. 

—  Difference  of  modern  from  ancient  orators,  §  548.  —  Secret 
of  good  speaking  in  due  attention  to  duties  of  preparation  and 
of  conduct  of  trial;  narrowing  province  of  eloquence,  §  549.  — 
The  advocate  should  not  gain  a  bad  or  lose  a  good  case ;  Lord 


xxxiv  TABLE  OF  CONTENTS. 

Campbell's  picture  of  the  King's  Bench  in  time  of  Chief  Jus- 
tice Abbott,  §  550.  —  Resistless  influence  of  accuracy  and  per- 
fect honesty,  §  551. 


CHAPTER  XIV. 

NEW   TRIAL   AND   APPEAL. 

Instructions  of  court  to  be  noted;  motion  in  arrest;  motion  for  new 
trial  to  be  made  advisedly;  preparation  of  grounds  during 
trial,  §  552.  —  Your  notes;  prayer  for  specific  instructions;  the 
charge  of  the  court ;  behavior  of  jury ;  —  all  to  be  considered, 
§  553. — Most  of  your  surest  opportunities  will  occur  suddenly, 
and  you  must  have  the  wit  to  know  them;  example,  §  554. — 
Having  certain  grounds  in  the  motion  to  be  of  such  wide  impli- 
cation that  you  can  bring  out  of  them  much  that  did  not  strike 
you  at  first;  illustrations,  §  555.  —  The  motion  to  be  completed 
as  soon  as  possible,  §  556.  —  No  parallel  to  new  trial  iu  war- 
fare, §  557.  —  Admirable  sjiirit  of  the  lawyer  who  will  not  sub- 
mit to  the  loss  of  a  good  case,  §  558.  — Bills  of  Exception; 
always  give  if  possible  your  judge  opportunity  to  correct  his 
errors,  §  559.  —  Summary ;  if  your  verdict  has  been  set  aside, 
when  you  should  make  and  when  forego  exception,  §  560.  — 
Cases  should  be  followed  to  the  appellate  court,  §  561.  — Law- 
yers should  not  submit  to  bad  rulings  and  verdicts;  proper 
control  of  yourself  and  of  a  judge  favoring  to  be  exercised 
during  trial;  all  good  points  to  be  taken  in  your  motion,  §  562. 
—  A  young  lawyer  generally  makes  his  mark  by  procuring  a 
reversal,  §  563. 


CHAPTER  XV. 

VICTORY    AND    DEFEAT. 

Whatever  remains  to  be  done  after  victory  should  be  done  energeti- 
cally; where  plaintiff's  lawyer  delayed  to  collect  a  judgment, 
§  564.  —  Counsel  submission  if  you  are  on  the  side  of  inevita- 
ble loss,  §  565.  —  Summary,  §  566. 


TABLE  OF  CONTENTS.  xxxv 

FINAL  CHAPTER. 

CHARACTER  OF  THE  SUCCESSFUL  LAWYER. 

The  successful  lawyer  compared  with  tlie  law  author,  as  the  good 
farmer  with  the  agricultural  chemist;  also  with  the  judge;  the 
command  which  the  lawyer  and  judge  have  of  common  legal 
rules,  §§  567,  568.  —  A  talent  for  facts  more  important  than  even 
a  talent  for  law,  §  569.  —  Further  as  to  the  relative  importance 
of  the  two  talents,  §  570.  —  Insight,  or  vision  of  the  truth,  the 
staple  of  each,  §  571.  —  An  apparently  hopeless  case  which  was 
won  by  the  appHcation  of  a  hackneyed  legal  principle;  acumen 
that  can  be  manifested  in  matters  of  evidence,  §§  572,  573.  — 
A  layman  shows  the  point  which  had  been  overlooked  by  coun- 
sel and  court,  §  574.  —  Transcendent  importance  of  seeing 
things  right,  §  575.  —  Marmont's  analysis  of  the  general,  in 
whom  firmness  overbalances  intelligence,  §  576.  —  Hamlet  de- 
ficient in  firmness,  and  therefore  deficient  in  action,  §  577. — 
Macbeth  and  Hamlet  contVasted,  §§  578,  579.  —  Themistocles 
perfect  in  the  combination  of  insight  and  promptness,  §  580.  — 
The  necessary  courage  is  but  self-possession,  §  581.  —  The  law- 
yer's avoidance  of  questions  which  he  has  not  time  to  investi- 
gate; he  does  not  attempt  impossibilities;  contrasted  with  the 
pettifogger,  §  582.  —  Summary  of  hard  things  which  the  law- 
yer must  constantly  do;  our  miniature  not  overcolored,  §§  583, 
584.  —  L'envoi,  §  585. 


CONDUCT  OF  LAWSUITS. 


GENERAL  INTRODUCTION. 


CONDUCT    OF    LAWSUITS. 


GENERAL  INTRODUCTION. 

§  1.  This  chapter  is  intended  to  be  more  than  a  prefix 
for  form's  sake,  of  not  very  relevant  matter,  as  an  Intro- 
duction often  is.  Tliose  parts  of  it  which  sketch  the 
ways  and  province  of  the  lawyer  ;  the  object  of  society  in 
encouraging  him ;  law,  fact,  and  passion  as  the  resources 
of  each  party ;  the  art  of  finding  and  using  decisive  advan- 
tages brought  out  prominently  by  a  comparison  with  the 
methods  of  games  and  warfare,  —  have  been  meditated 
with  great  care.  Reinforced  by  the  remaining  passages, — 
such  as  those  which  review  the  applicable  literature  and 
display  the  purpose  of  our  present  work,  —  they  will  be,  we 
think,  of  great  help  in  clarifying  and  fixing  the  concep- 
tion with  which  it  is  proper  that  the  study  of  the  princi- 
ples of  practice  should  be  commenced.  Although  this 
conception  can  be  no  more  than  provisional,  yet  the  young 
lawyer  is  interested  to  have  it  the  very  best  possible. 

After  this  call  to  attention  we  begin. 

§  2.  Practice  includes  much  more  than  the  manage- 
ment of  lawsuits.  Besides  considering  proposed  actions 
and  defences  and  pronouncing  for  or  against  them,  the 
practitioner  in  his  chambers,  as  we  suggest  more  fully  else- 
where,^ is  full  of  other  occupations,  —  such  as  answering 

1  American  Law  Studies,  §§  100,  101,  1017. 
1 


2  CONDUCT   OF   LAWSUITS. 

consulting  clients,  examining  titles  and  making  abstracts, 
drawing  conveyances  and  collecting  money,  or  lending  it 
out  on  apj)roved  security.  In  view  of  the  importance  of 
the  business  last  suggested,  and  the  fact  that,  as  a  general 
rule,  it  gives  the  young  lawyer  his  principal  employment  in 
the  opening  of  his  career  when  he  is  in  most  need  of 
instruction,  for  a  long  time  while  contemplating  this  new 
edition  we  purposed  to  present  all  the  several  branches 
of  professional  employment,  having  selected  for  a  motto 
to  declare  our  enlarged  scope  on  the  titlepage, — 

"  Seu  linguam  causis  acuis,  seu  civica  jura 
Respondere  paras." 

But  the  longer  we  thought  the  matter  over,  it  appeared 
to  us  the  more  clearly  that  the  Conduct  of  Lawsuits  calls 
for  separate  treatment.^  It  is  more  a  complete  whole 
than  Statutory  Construction,  Pleading,  or  Evidence,  every 
one  of  which  has  long  had  its  special  treatises.  It  is  also 
of  such  fundamental  character  and  all-embracing  reach, 
that  the  mastery  of  its  essential  principles  is  the  chief 
education  for  the  other  branches  of  practice ;  for  nearly 
all  right  effort  in  these  is  fashioned  after  the  example  of 
counsel  in  the  conduct  of  litigation.  To  pronounce  upon 
a  title,  to  draw  a  contract,  to  advise  a  client,  —  to  do 
these  things  as  they  ought  to  be  done  demands  a  con- 
sideration of  the  details  of  evidence,  which  is  like  the 
preparation  necessary  in  issues  of  fact ;  and  every  one  of 
these  often  necessitates  a  search  for  the  governing  au- 
thority which  finds  its  pattern  in  the  investigation  of 
counsel  meditating  how  they  will  attack  the  adversary  or 

^  Those  familiar  with  Roman  law  will  remeniher  the  distinction  be- 
tween jarisdictio  contcntiosa  and  jurisdictio  volitntaria. 


GENERAL  INTRODUCTION.  3 

fortify  against  him  on  the  lav.'.  When  these  processes  of 
deaHng  with  the  particulars  of  controverted  cases  and  the 
pertinent  law  have  been  firmly  acquired,  the  rest  of  pro- 
fessional training  will  come  spontaneously  and  in  the  best 
way.  That  they  receive  emphatic  attention  in  the  con- 
duct of  litigation,  and  arc  therein  more  completely  set 
forth  and  exemplified  than  anywhere  else,  is  an  impera- 
tive argument  for  having  the  student  begin  his  study  of 
the  rationale  of  practice  with  the  department  which  is, 
as  it  were,  the  lawgiver  to  the  rest. 

§  3.  In  a  late  work  we  noted  how  the  concern  of 
the  practitioner  always  to  find  such  positions  as  will 
secure  the  approval  of  the  courts  leads  him  to  imitate 
judicial  reasoning.^  And  to  represent  the  method  of 
judges  as  the  typical  one  of  legal  investigation  is  not 
inconsistent  with  maintaining  that  the  method  of  counsel 
in  preparing  and  conducting  litigated  cases  is  the  typical 
one  of  practice.  The  sphere  of  counsel  is  wider  than  that 
of  the  judge,  the  former  investigating  facts  as  well  as 
law ;_  and  he  aims  at  a  different  object.  The  judge's  sole 
business  is  with  concrete  questions  of  law,  not  found  by 
himself,  but  submitted  by  others.  The  lawyer  has  to  do 
with  such  questions.  He  examines  perhaps  a  great  many 
suggested  by  a  particular  group  of  facts,  choosing  but  a 
few  to  be  made  by  his  pleadings  and  proofs ;  and  in  con- 
sidering, and  at  last  arguing  these,  he  follows  in  the 
main  the  course  of  judicial  inquiry.  But  the  facts,  and 
not  the  law,  are  his  first  care.  He  must  learn  his  client's 
evidence,  and  conjecture  that  of  his  adversary.  And  his 
peculiarizing  aim  is  to  forecast  and  execute  such  meas- 
ures as  will  confine  the  main  issues  at  the  trial  presided 
1  American  Law  Studies,  §  766. 


4  CONDUCT  OF  LAWSUITS. 

over  by  the  judge  to  points  of  fact  or  law  in  which  he 
is  stronger  than  his  antagonist.  This  widely  differences 
the  conductor  from  the  umpire  of  lawsuits.  The  latter 
is  without  initiative  and  interest,  and  his  entire  office  is 
impartially  to  decide  questions  of  law  as  they  are  finally 
presented  by  the  skill  and  art  of  the  biased  disputants. 
The  process  by  which  the  lawyer  in  litigation  ascertains 
proofs  and  counter  proofs,  and  puts  forth  the  strength  of 
his  side  while  he  weakens  that  of  the  other,  is  what  we 
have  just  claimed  to  be  typical.  One  or  both  of  its  ele- 
ments are  dominant  in  all  the  non-contentious  affairs 
hinted  at  above.  Even  in  advising  clients  seeking  an 
opinion  —  where  the  lawyer  perhaps  most  closely  ap- 
proaches the  judge  —  there  must  be  industrious  inquiry 
after  facts.  In  nearly  all  the  rest,  the  counsel  begins  by 
contemplating  an  interest  in  jeopardy,  and  becomes  un- 
consciously more  and  more  affected  by  the  leaning  of  his 
client,  and  he  generally  ends  by  attempting  protection. 

The  foregoing  outlines,  sufficiently  for  this  place,  the 
essentials  of  the  conduct  of  litigation,  and  vindicates  the 
propriety  of  devoting  the  work  exclusively  to  them.  We 
now  proceed  to  give  such  a  presentation  as  suffices  for  the 
purposes  of  an  Introduction. 

§  4.  We  use  the  word  Lawsuits,  and  its  equivalent, 
Litigation,  in  the  widest  sense.  Whether  legal  rights  be 
involved  in  an  issue  of  fact  on  the  law  side,  or  a  bill  in 
equity  is  exhibited  to  settle  intricate  accounts  or  difficult 
questions  of  law,  or  whether  the  State  be  proceeding  on 
an  accusation  of  crime,  —  such  and  all  other  conceivable 
cases,  if  they  are  defended,  are  classed  under  the  words 
just  emphasized.  These  controversies  when  offered  to 
the  lawyer  can  be  wisely  declined,  or  they  can  be  wisely 


GENERAL   INTRODUCTION.  5 

taken  and  skilfully  carried  on;  and  we  may  now  indicate 
our  purpose  in  general  by  saying  that  it  is  to  give  the 
principles  of  what  we  may  term  the  Right  Conduct  of 
Lawsuits  or  Litigation. 

§  5.  To  mark  off  our  special  field  with  accuracy,  we 
must  show  the  sphere  and  objects  of  the  profession  in 
greater  detail.  We  do  not  find  the  lawyer's  activity  fully 
told  in  the  books  which  are  the  daily  employment  of 
judge,  law  author,  and  lawyer.  The  report  of  a  case 
adjudged  by  a  court  of  errors  states  only  what  were  the 
questions  made  by  the  record  and  how  they  were  dis- 
posed of;  and  the  same,  in  the  main,  is  true  as  to  nisi 
2)rius  reports.  Our  beginning  lies  far  behind  trials  and 
arguments,  and  we  are  to  discuss  that  which  is  rarely 
reported,  —  that  is,  how  the  parties  were  brought  to  the 
issues  tried  at  last.  This  department  is  one  of  such  great 
extent  that  we  give  it  all  of  the  first  one  of  our  two 
Books.  While  he  is  in  it,  the  lawyer  is  almost  at  an- 
tipodes to  the  judge.  Here  he  spends  most  of  his  time 
in  the  particulars  of  his  case,  his  aim  being  to  secure  a 
battle-ground  of  his  choice,  and  to  have  for  his  side  an 
overweight  of  force.  If  not  incessantly  watched  by  an 
alert  and  industrious  adversary,  he  will  often  acquire  a 
strength  wliich  he  did  not  have  at  first  and  cut  off  the 
other  side  from  many  of  its  advantages;  and  he  will 
dexterously  lead  his  antagonist  away  from  positions 
inexpugnably  guarded  by  judges  and  authors  agreeing, 
and  induce  him  to  stand  on  others  which  they  unani- 
mously condemn,  or  he  will  manoeuvre  him  out  of  c\H[den- 
tial  superiority,  or  win  by  making  some  other  legitimate 
move.  The  ablest  judge  and  the  most  renowned  law 
writer   have   not   always   been  good   practitioners.      All 


6  CONDUCT  OF  LAWSUITS, 

of  us  have  observed  at  the  bar  tliat  greater  learning  and 
understanding  of  the  law  are  sometimes  outdone  by  greater 
ability  to  manage  cases.  This  address  in  practice,  which 
is  often  victorious  over  larger  knowledge  of  the  law 
sources,  is  our  special  subject. 

§  (3.  We  have  hinted  the  difference  between  the  disin- 
terested judge  and  the  lawyer  who  is  always  seeking  the 
interest  of  his  client,  and  wc  are  now  to  work  it  out  more 
fully.  The  former  is  constantly  asking  himself,  Of  these 
two  contending  parties,  which  has  the  right  ?  And  he  de- 
cides according  to  some  applicable  rule  of  law.  But  the 
latter  is  partialized  to  one  side,  and  his  perpetual  question 
is.  How  can  I,  conforming  to  the  law  and  the  principles 
which  govern  human  action,  procure  the  judge  to  I'ule, 
or  the  jury  to  find,  for  my  client  ?  His  industry  in  his 
chambers,  poring  over  records  and  documents  and  sifting 
witnesses,  his  long  strain  of  attention  concentrated  upon 
everything  in  the  trial,  and  his  zeal  and  sometimes  eloquence 
in  argument,  are  all  for  another  and  not  for  himself.  The 
client  can  prepare  his  case  and  conduct  it  in  court.  This 
is  his  constitutional  right.  But  as  it  requires  much  train- 
ing to  become  qualified  for  managing  causes,  the  litigant 
engages  the  services  of  one  who  makes  the  law  his  profes- 
sion. This  has  often  been  said  before,  but  it  is  repeated  to 
attract  special  attention  at  this  place  to  the  representative 
character  of  the  lawyer.  He  stands  in  the  shoes  of  his 
principal.  His  education  has  bred  him  to  avoid  the  little 
and  sordid  selfishness  seen  in  many  a  client,  yet  he  cannot 
rise  to  the  serene  impartiality  of  the  judge.  His  cases,  that 
is,  his  side  of  his  cases,  are  his  idols.  His  way  of  life  has 
stimulated  his  partisanship,  and  he  is  often  found  to  be  far 
more  earnest  and  aroused  than  the  party  actually  interested. 


GENERAL   INTRODUCTION.  7 

§  7.  And  this  is  the  process  of  nature,  that  every  pre- 
cious cause  be  confichnl  for  deveh)pnient,  protection,  or 
defence  to  a  partial  and  loving  devotee.  The  wife  is 
intrusted  to  the  self-sacrificing  husband,*  children  to  the 
fondness  of  parents,  and  the  existence  of  the  country  is 
sometimes  placed  in  the  hands  of  the  general  and  army, 
every  one  of  whom  is  expected,  if  need  be,  to  die  cheer- 
fully in  the  cause.  All  of  these  guardians  are  spurred  ou 
by  the  whole  woild  to  do  their  utmost.  Tlic  parent,  hus- 
band, general,  and  lawyer  will  often  achieve  for  their 
several  charges  that  which  rightfully  belongs  to  others. 
Yet  our  hearts  approve  the  faithful  deputy,  and  if  he  has 
kept  his  honor  unstained  we  cannot  blame  him  for  suc- 
ceeding on  the  wrong  side. 

§  8.  But  society  wishes  the  right,  and  not  a  particular 
lawyer,  to  triumph,  and  so  she  strives  to  mate  against  him 
equal  fidelity  and  strenuousness  for  the  opposing  cause. 
And  to  decide  the  contest  she  selects  educated  and  prac- 
tised judges  and  impartial  juries,  who  are  to  hear  whatever 
the  concern  and  passion  of  the  disputants  can  say.  Every 
lawyer  is  free  to  take  any  case  ;  he  is  unconstrained  in  its 
preparation  and  conduct ;  and  he  is  allowed  free  speech 
and  discussion.  The  assumption  of  the  law  is,  that  in 
the  main  the  right  will  prevail  where  truth  and  error 
combat  on  equal  terms;  and  the  assumption  is  justified 
by  experience.  The  law  will  have  all  engaged  in  the 
struggle  unhampered.  Those  who  show  themselves  to 
be  right  are  given  the  palm  of  victory,  and  those  who 
fail  are  commended  for  their  hearty  striving. 

§  9.  This  train  of  thought  clears  up  our  subject.  We 
thereby  see  that  the  law  turns  even  selfishness,  partiality, 
and  passion  into  social  benefactors.     The  resort  ad  libitum 


8  CONDUCT   OF  LAWSUITS. 

to  the  courts  and  tlie  uncurbed  preparation  and  discussion 
are  part  and  parcel  of  tlie  liberty  which  our  forefathers 
brought  hither,  and  the  office  of  the  judge  and  the  sacred- 
ness  of  his  judgment  belong  to  that  majesty  of  the  law 
which  they  put  above  even  their  liberty  in  their  love. 
The  profession,  that  is,  a  ubiquitous  body  of  men  making 
the  law  their  study  and  its  practice  their  livelihood,  and  the 
tried  and  unbiased  judge,  are  devised  to  hold  the  scales 
of  justice  even.  An  inferior  practitioner  with  the  law  or 
evidence  on  his  side  before  an  ordinary  court  is  usually  an 
overmatch  for  a  leader  doing  his  best  on  the  other  side. 
In  this  work  we  are  to  deal  with  common  affairs,  with  av- 
erage men.  We  may  now  and  then  say  a  word  of  great 
causes,  or  glance  a  look  of  admiration  upwards  on  the  few 
occupying  the  pinnacles  of  forensic  and  judicial  fame,  such 
as  Cicero,  Erskine,  Marshall,  and  Mansfield.  But  it  shall 
always  be  our  chief  concern  to  keep  within  the  beaten  paths 
of  litigation  as  it  is  generally  managed,  it  being  our  leading 
purpose  to  show  how  the  average  lawyer  ought  to  deal 
with  an  average  case. 

§  10.  It  is  next  in  order  to  present  the  elements  of  liti- 
gation. Differences  as  to  the  law  are  referred  to  the  judge 
for  decision.  In  giving  judgment,  he  is  guided  by  the 
proper  authorities,  and  where  they  fail  to  furnish  a  rule,  he 
is  guided  by  that  which  appears  to  be  just  and  reasonable.^ 
Disputed  facts  are  usually  tried  by  a  jury.  In  the  main, 
juries  exercise  the  same  faculties  in  passing  upon  testimony 
that  other  people  do,  whether  lay  or  professional.  Were 
the  present  system  abolished,  as  it  probably  will  be  after 
a  few  years,  whatever  successor  tried  facts  would  try  them 

1  This  snVijeot  is  explained  at  length  in  our  chapter  on  Legal  Investiga- 
tion, American  Law  Studies,  §  765  d  seq. 


GENERAL  INTRODUCTION.  9 

as  juries  do  now,  and  the  science  of  practice  would  be  the 
same  in  its  leading  elements.  Often,  bv  commandment  or 
permission,  a  judge  hears  the  facts,  and  then  he  weiglis 
them  as  a  juror  would.  In  the  Roman  law  the  judex,  that 
is,  the  lay  judge  who  tried  the  case,  disposed  of  all  the 
issues,  there  not  being  in  his  province  a  trace  of  the  dis- 
tinction of  jury  and  court  that  obtains  with  ns  ;  and  yet 
the  remains  of  the  classical  jurisprudence  contain  full  rec- 
ognition of  the  difference  between  law  and  fact.^ 

§  11.  The  antithesis  of  law  and  fact  lies  at  the  threshold 
of  practice.  Every  case  is  lost  or  won  either  by  the  de- 
cision of  the  court  or  by  the  finding  of  the  jury,  or  by  both 
together.  As  law  and  fact  diverge  so  widely,  and  the  prov- 
inces of  judge  and  jury  are  so  far  apart,  and  yet  both  judge 
and  jury  are  to  co-operate,  neither  the  distinction  nor  the 
union  of  the  two  must  ever  be  lost  sight  of.  An  adversary 
may  say  to  another,  "  I  do  not  admit  that  the  facts  are  as 
you  contend  them  to  be,  which  difference  of  ours  must  be 
submitted  to  the  jury.  And,  if  the  jury  hold  with  you,  I 
shall  dispute  the  proposition  of  laAV  on  which  you  rely,  — 

*  De  juris  etfadi  ignorantia,,  is  the  title  of  Dig.  22.  6.  Here  occurs  the 
dictum  of  Neratius,  "In  oinni  parte,  eiTor  in  jure,  non  eodem  loco  quo  facti 
ignorantia  haheri  debebit  ;  cum  jus  finituui  et  possit  esse  ct  debeat.  Facti 
interpretatio  etiam  prudentissimos  fallit " ;  —  which  is  thus  translated  by 
Mr.  Phillimore  :  "  In  no  part  of  law  should  ignorance  of  law  and  fact  be 
place<l  on  the  same  footing  ;  since  law  may  be,  and  ought  to  be,  confined 
■within  certain  limits.  But  on  the  right  construction  of  a  fact,  the  wisest 
may  he  mistaken."  See  Heumann's  Handlcxicon,  where,  in  the  second 
division  under  Factum,  many  instances  of  the  contrast  between  that  word 
&\\6.jics  occurring  in  different  parts  of  the  Pandects  arc  given  ;  cf.  also  our 
American  Law  Studies,  §  1234,  note  2.  Compare  these  references  with  the 
chapter  on  Ignorance  and  Mistake  of  Law  and  Fact,  in  7th  ed.  of  Bishop, 
Crim.  Law  (§  292  et  acq.),  and  the  reader  will  be  of  a  different  mind  from 
Windschcid,  who  pronounces  tlie  distinction  between  law  and  fact  to  be 
rather  external  than  essential. 


10  CONDUCT   OF   LAWSUITS. 

that  is,  I  shall  in  that  event  admit  your  facts,  but  contend 
that,  conceded  to  the  fullest,  they  do  not  make  a  case  for 
you  under  the  law."  If  the  jury  agree  with  him,  he  will 
have  no  need  to  raise  the  legal  question,  for  the  adverse 
allegations  are  found  not  to  be  true.  But  if  the  jury  are 
opposed,  and  yet  the  judge  rulas  tliat  the  facts  they  find, 
or  would  find,  give  no  right  in  law,  that  decision  is  also 
enough  for  him. 

§  12.  The  books  speak  of  mixed  questions  of  law  and 
fact.  They  are  left  to  the  jury,  with  instructions  from  the 
court.     It  is  apparent  that  they  involve  no  new  element. 

§  13.  The  student  should  ponder  long  over  the  two 
elements  just  brought  to  view.  They  enter  into  every 
case.  That  which  presents  no  issue  but  a  legal  question 
takes  the  facts  for  granted,  and  that  which  offers  only  an 
issue  of  foct  takes  the  law  for  granted.  In  the  first  case 
just  supposed  in  this  section,  the  combatants  concur  as  to 
the  facts  and  raise  a  question  of  law  ;  while  in  the  second, 
being  at  one  on  the  law,  thoy  dispute  only  as  to  the  facts. 
We  may  therefore  sum  up  for  the  present  as  follows  : 
Litigation  is  controversy  over  either  facts  disputed,  or  law 
disputed,  or  over  both. 

§  14.  Usually,  no  other  element  is  recognized.  But 
there  is  another,  which  occasionally  triumphs  over  the 
strongest  possible  union  of  the  two  mentioned,  and  it  is 
only  a  small  percentage  of  genuine  litigations  in  which  it 
needs  not  to  be  attended  to  carefully,  either  in  prej)aration 
or  court  management.  It  is  the  influence  which  the  partic- 
ular case  exercises  upon  the  feelings  of  judges  and  juries. 

§  15.  We  will  exemplify  by  twa  instances.  A  husband 
detected  his  Avife  and  a  man  in  his  bed  at  niglit.  He  fired 
through  a  window  and  seriously  wounded  the  two.     The 


GENERAL   INTRODUCTION.  H 

people  generally,  even  the  women,  said  that  he  ought  to 
have  killed  both.  As  soon  as  the  wounded  man  could 
be  safely  carried  to  court,  he  pleaded  guilty  to  a  charge  of 
adultery,  and  he  received  an  unusually  severe  sentence. 
This  was  commended  by  the  whole  community.  It  was 
hoped  that,  as  he  had  returned  the  husband's  fire,  he  could 
be  convicted  of  the  graver  charge  of  assault  with  intent  to 
murder.  While  the  grand  jury  were  considering  a  bill  for 
this  offence,  the  wife  testified  tliat  the  letter  making  the 
assignation  was  written  by  her  at  the  persistent  solicitation 
of  her  husband,  he  telling  her  that  he  would  be  away  from 
home  that  night  and  making  her  think  that  he  did  not 
object  to  the  visit  invited ;  and  she  further  said  that  he 
provided  the  messenger  who  bore  the  letter.  Her  narrative 
was  not  credited,  and  the  husband  was  called  to  contradict  it. 
But  he  admitted  it  to  be  true.  He  explained  that  he  had 
seen  nmch  to  excite  his  suspicions,  but  he  could  not  believe 
his  wife  unfaithful.  The  letter  was  written  and  delivered, 
as  she  had  testified,  and  he  had  induced  her  to  think  that 
he  should  be  away,  all  in  order  to  test  her.  This  disgusted 
the  grand  jury,  and  tlicy  forthwith  iguoi'cd  the  bill  for  as- 
sault with  intent  to  murder,  and  also  another  for  adultery 
pending  against  the  woman.  And  the  community,  outraged 
by  what  seemed  to  be  the  consent  of  the  husband  to  his 
wife's  unchastitv,  suddenly  discovered  a  victim  in  the  con- 
victed man.  In  the  eye  of  the  law,  the  conduct  of  the 
husband  could  not  alter  his  offence.  It  was  simply  adul- 
tery —  a  misdemeanor  punishable  by  fine  or  imprison- 
ment—  whether  committed  with  or  without  the  permission 
of  the  husband.  But  a  petition  signed  by  many  good  citi- 
zens was  presented  to  the  Governor,  praying  for  pardon  or 
commutation.     And  it  was  plain  that,  had  this  apparently 


12  CONDUCT  OF  LAWSUITS. 

irrelevant  faet  of  the  husband's  possible  connivance  come 
to  light  earlier,  either  the  defendant  w^ould  never  have 
been  convicted,  or  the  court  in  its  discretion  would  have 
sentenced  him  to  pay  only  a  nominal  fine. 

§  10.  The  fact  which,  as  just  told,  was  so  influential, 
existed  before  the  case  was  connnenced,  though  it  had 
been  concealed  for  some  time.  Our  second  instance  is  of 
au  occurrence  during  a  trial  related  by  Mr.  Harris.  A 
plaintiff  suing  for  breach  of  promise  of  marriage  had  in  her 
testimony  made  out  a  rather  weak  case  for  damages.  In 
cross-examination  the  defendant's  counsel  asked  her  if  she 
and  the  defendant  had  not  staid  in  a  house  together  for 
three  weeks  while  no  one  else  was  there.  Of  course  this 
was  an  insinuation  intelligible  to  all  the  hearers,  and  it 
led  them  to  expect  evidence  making  it  good.  But  she 
answered  in  the  negative,  with  behavior  becoming  a 
wronged  woman  ;  and  as  there  was  not  even  an  attempt 
to  prove  anything  suggested  by  the  question,  it  became 
conspicuous  as  a  needless  and  wanton  insult.  Her  coun- 
sel made  it  the  text  of  his  declamation,  and  he  got  round 
damages.  At  the  end,  the  narrator  enforces  his  moral  by 
saying,  "  The  action  was  for  breach  of  promise  to  marry, 
but  the  verdict  was  for  slander."  ^ 

§  17.  The  practitioner  must  know  well  the  common 
views,  sentiments,  and  creeds  of  mankind.  He  must  also 
know  their  erroneous  prejudices,  to  be  used  as  allies,  or  to 
be  avoided  if  need  be,  and  sometimes,  though  rarely  and 
with  desperate  risk,  to  be  closed  with  in  uncompromising 
struggle.  The  heart  governs  more  than  the  head.  The 
sitter  on  the  seat  of  judgment  has  his  weak  likes  and  dis- 
likes.    Lord  Campbell  narrates  of  Lord  Tenterden  :  "  The 

^  Illustrations  in  Advocacy,  2-21. 


GENERAL  INTRODUCTION.  13 

bias  which  cliiefly  carried  Abbott's  mind  astray  .  .  .  was 
a  suspicion  of  fraud.  lie  luid  a  veiy  indifferent  opinion  of 
human  nature.  .  .  .  He  delii^hted  in  discovering  what  he 
considered  a  fraudulent  contrivance  on  the  part  of  the 
phiintiff  or  of  the  defendant  and  in  unravelling  it.  I  have 
heard  Scarlett  jocularly  boast  that  he  had  got  many  a  ver- 
dict by  humoring  this  propensity,  just  giving  the  hint  very 
remotely  to  the  Chief  Justice  and  allowing  his  Lordship 
all  the  pleasure  and  4clat  of  exposing  and  reprobating  the 
cheat."  ^  Again,  a  judge  is  often  too  much  under  the  in- 
fluence of  a  particular  lawyer ;  or  a  lawyer  may  have  a 
bewitching  popularity  with  juries  ;  or  a  party,  or  a  material 
witness  for  him,  may  have  a  bad  name  that  biases  every- 
body against  him.  There  might  be  innumerable  examples 
given  of  causes  influencing  juries  who  are  sworn  not  to  be 
influenced  by  them,  and  making  judges  to  stumble  who  try 
to  keep  from  slipping  as  they  walk. 

§  18.  The  law  as  written  in  the  text-books  and  as  re- 
vealed in  the  adjudged  cases  is  not  the  same  as  that  as- 
sumed by  its  administrators.  The  reports  over  which  we 
pore  day  and  night  have  no  presentation  of  the  faces,  char- 
acters, voices,  dress,  deportment,  and  evident  bias  one  way 
or  the  other,  of  the  parties  and  witnesses.  The  glance  of 
intelligence  of  a  juror  unconscious  that  he  is  watched,  the 
frown  of  another,  and  the  smile  of  still  another,  —  all  these 
are  missed.  But  they  were  signs  by  which  the  lawyer  was 
guided  almost  unconsciously.  There  is  no  place  where  the 
emotions  have  more  unconstrained  play  than  in  a  crowded 
court-room  during  an  important  and  exciting  trial.     The 

^  Scarlett  seems  to  have  said  tins  of  Lord  EUeiiborougb,  and  Campliell 
probably  misunderstood  him.  See  the  passage  in  liis  Autobiography, 
quoted  by  us,  American  Law  Studies,  §  1091. 


14  CONDUCT   OF   LAWSUITS. 

hearers  go  along  with  everything  as  well  as  the  audienec 
follows  tlie  play  in  the  theatre,  and  though  the  sheritl"  and 
bailiffs  keep  the  best  of  order,  the  entire  throng  perceptibly 
manifest  their  approval  or  condemnation  of  whatever  is 
said  or  done.  The  bar  feel  this  influence  :  their  relatives, 
friends,  and  clients  are  there.  The  judge  is  under  it  too, 
and  he  has  a  fraternal  feeling  for  the  j)eople  present.  And 
the  jury,  why,  they  come  from  that  multitude.  All  of  them, 
judge,  counsel,  witnesses,  parties,  jury,  and  spectators,  are 
men  and  women.  They  live  in  their  feelings  ;  and  these 
impulsive,  heady  feelings  are  ever  running  away  with  their 
reason.  And  thus  is  there  a  different  law  at  nisi  prlus 
from  that  which  is  found  in  Blackstone  and  Story.  And 
this  law  is  to  be  learned  by  him  who  would  be  a  successful 
practitioner.  He  must  study  the  fountains  of  human  action. 
Through  the  whole  course,  from  weighing  the  chances  of 
litigation  to  the  end  of  the  trial,  he  must  keep  them  in 
understanding  attention  in  order  to  make  his  conduct  of 
the  case  thoroughly  skilful. 

§  19.  The  subdivision  now  under  consideration  has  been 
too  much  neglected.  The  law  abounds  in  guards  against 
local  influence,  partial  juries,  and  all  the  incursions  of  pas- 
sion or  affection  upon  the  right.  But  somehow  in  the 
books  the  part  played  by  the  feelings  as  a  factor  in  litiga- 
tion is  hardly  ever  mentioned  except  very  briefly  or  by  im- 
plication. We  do  not  mean  to  say  that  this  third  element, 
often  of  varying  and  shifting  character,  and  often  not  pres- 
ent at  all,  is  of  superior  or  even  equal  effect  in  the  aver- 
age to  either  of  the  other  two,  but  we  do  mean  to  say  that 
its  importance  in  daily  practice  is  so  great  that  the  young 
lawyer  should  have  it  deeply  impressed  upon  his  mind  at 
the  outset. 


GENERAL   INTRODUCTION.  15 

§  20.  We  conclude  tliis  branch  of  our  subject  by  stating 
that  there  are  three  divisions  which  make  up  the  entire 
course  of  litigation  ;  namely,  the  legal,  tlie  evidential,  and 
what,  in  default  of  a  better  name,  we  call  the  emotional. 
These  blend  together  and  foini  a  threefold  cord  of  prepara- 
tion, plan  of  conduct,  and  advocacy. 

§  21.  Now  comes  the  use  to  be  made  of  the  three 
elements. 

In  litigation  you  either  take  the  aggressive  or  you  stanc- 
on  the  defensive,  and  your  attack  or  defence  is  to  be  basec* 
upon  one,  or  two,  or  all  three.  The  aim  of  an  intelligent 
conduct  is  to  secure  a  decisive  advantage  over  the  adver- 
sary. If  you  can  be  stronger  on  material  questions  of  fact ; 
or  if  you  can  demonstrate  that  tlie  case  turns  upon  a  favor- 
able legal  proposition  which  you  can  establish  ;  or  if,  with 
a  weak  case  in  law  and  evidence,  you  can  press  your  antag- 
onist into  a  strait  where  his  demands  will  arouse  the  un- 
controllable indignation  of  judge  or  jury, — you  have  the 
upper  hand.  And  of  course  you  are  trebly  safe  if  you 
have  managed  to  be  superior  in  every  one  of  the  three 
elements.  Right  management  of  litigation  is  therefore 
founded  on  intelligible  principle,  its  object  being  to  dis- 
cover and  maintain  an  ascendency  on  those  points  of  contro- 
versy which  are  cardinal  or  controlling.  A  little  observance 
of  trials  and  arguments  will  give  the  reader  a  clearer  insight 
into  the  subject  than  many  more  pages,  however  carefully 
written  and  crowded  with  illustrations.  At  the  close  of 
the  evidence  and  before  the  argument  begins,  he  will  often 
detect  the  advantage  of  the  prevailing  party,  and  he  will, 
when  hearing  the  discussion  of  law  points,  begin  to  foresee 
Avho  will  get  the  decision  of  the  judge.  And  he  will  be 
quicker  to.  discern  the  rising  of  a  tide  of  passion  and  iTow 


16  CONDUCT  OF   LAWSUITS. 

it  bodes  success  to  one  and  loss  to  the  other  party.  Na- 
poleon's saying,  that  all  the  art  of  war  consists  in  being 
stronger  on  a  certain  point,  is  accepted  as  an  axiom. 
Likewise  in  litigation  there  are  turning  points,  and  the 
party  who  by  fortune  or  forecast  is  the  stronger  upon  these 
will  in  general  prevail. 

§  22.  Next  for  tlie  rationale  of  managing  your  resources, 
that  is,  how  you  will  seek  to  have  your  side  the  stronger 
in  some  decisive  respect.  And  to  develop  the  important 
distinction  between  that  which  ought  to  be  done  before, 
and  that  which  ought  to  be  done  during  the  trial,  we  begin 
by  contrasting  our  subject  with  other  conflicts  wherein 
there  is  a  somewhat  similar  struggle  of  one  adversary  to 
overcome  another.  There  are  games,  such  as  draughts  and 
chess,  which  are  wholly  trials  of  skill,  the  qualifications  of 
the  players  being  everything.  But  in  others,  such  as  cards, 
chance  is  an  additional  factor.  Litigation  has  not  the  cer- 
tainty of  those  first  mentioned.  It  is  like  whist,  where 
sometimes  the  luck  of  the  tyro  will  vanquish  the  expert. 
And  in  war  the  elements  of  nature,  and  occurrences  which 
cannot  be  anticipated  by  the  wisest,  often  reinforce  the  un- 
trained soldier  and  chastise  the  over-confidence  of  supe- 
rior genius.  Still,  there  are  good  whist-players  and  able 
generals  who  usually  beat  all  adversaries.  There  are, 
too,  superb  lawyers,  who  succeed  so  frequently  and  often 
so  surprishigly  that  the  undiscerning  multitude  almost 
believe  them  capable  at  will  either  of  creating  resistless 
combinations  or  of  changing  the  nature  of  judges  and 
juries  so  as  to  save  bad  cases.  The  master  of  whist 
makes  every  play  according  to  the  proper  rule  of  the 
game ;  the  good  general  directs  every  movement  by 
the  true  manual  of  the  art  of  war;   and  the  able  lawyer 


GENERAL  INTRODUCTION.  17 

chooses   liis  cases  by   principle,  and   prepares   and   man- 
ages them  by  principle. 

§  23.  If  we  contemplate  litigation  closely,  we  see  that 
it  is  more  like  warfare  than  it  is  like  a  game.  In  whist, 
chance,  and  not  forecast,  preordains  your  hand,  while  in 
chess  and  other  games  of  skill,  and  not  hazard,  both  players 
start  with  equal  chances,  except  that  one  has  the  first  move. 
Thus,  there  can  be  no  definite  plan  made  before  the  game 
begins,  no  marshalling  of  forces  and  agencies.  On  the 
contrary,  a  battle  or  a  trial  hardly  ever  occurs  so  suddenly 
but  that  much  could  have  been  foreseen  and  j^rovided  for ; 
and  if  wise  anticipation  and  industry  are  matched  against 
mediocrity  and  supineness,  in  the  great  number  of  instances 
the  strategy  in  war  and  the  preparation  in  litigation  of  the 
former  decide  the  event  in  advance  of  the  battle  or  trial. 
The  conduct  of  a  trial  or  hearing  does  resemble  the  play- 
ing of  a  game,  but  there  is  in  the  game  no  parallel  to  that 
provident  preparation  which  the  lawyer,  moving  or  defend- 
ing, may  give  his  case.  In  this  particular  of  intelligent 
provision  for  the  encounter,  litigation  corresponds  more 
closely  to  warfare  than  it  docs  to  any  species  of  contention. 
And  this  similarity  goes  far  deeper  than  the  humorous  and 
striking  but  superficial  comparison  which  it  served  Cicero's 
purpose  to  make  when  he  exalted  his  soldier  client  and 
disparaged  Servius  Sulpicius,  the  lawyer  accusing  him.^ 

1  In  Pro  Murcnn,  he  says  :  "Servius  hie  nohiscum  hanc  urbanam  mili- 
tiam  respondemli,  scribendi,  cavendi,  pleiiam  sollicitndinis  acstoniaclii  sccu- 
tus  est."  Further  on,  speaking  of  the  lawyer  in  tlie  second,  and  his  client 
in  the  third  person,  he  continues  the  comparison  :  "  Vigilas  tu  de  nocte  ut 
tnis  consultoriltus  respondeas,  ille  ut  eo,  (pio  intendit,  mature  cum  exercitu 
perveneat  ;  te  galloruni,  ilium  bucinaruni  cantns  exsuscitat  ;  tu  actionem 
instituis,  ille  aciem  instruit.  Tu  caves  ne  tui  consultores,  ille  ne  urbes  aut 
castra  capiantur  ;  ille  tenet  et  scit  ut  hostium  copiae,  tu  ut  aijuae  pluviae 
arceantur  ;  ille  exercitatus  est  in  piopagandis  finibus,  tu  in  regendis,  ac 

2 


18  CONDUCT   OF  LAWSUITS. 

§  24.  Military  openitions  arc  of  two  sorts :  first,  those 
which  anticii)atc  the  battle;  second,  the  management  of 
the  battle  itself.  The  art  teaching  the  operations  prepara- 
tory for  battle  is  called  Strategy,  and  the  art  which  rightly 
conducts  a  battle  is  named  Tactics.  The  verbal  definition 
of  the  foi-mer  is  manoeuvring  in  the  absence  of  the  enemy, 
and  the  verbal  definition  of  Tactics  is  manceuvring  in  his 
presence.  Strategy  combines  the  forces  and  directs  the 
movements  to  a  certain  point  where  it  is  sought  to  over- 
match the  enemy.  It  is  plain  that,  if  two  opposing  armies 
are  equal  in  all  other  things,  the  one  wnll  generally  win 
which  is  led  by  the  better  strategy.  Battles  are  more 
often  decided  by  what  has  been  done  or  left  undone  before- 
hand than  by  the  merits  or  faults  of  their  actual  conduct. 

niminnii,  disrendnm  est  enim  quod  sentio,  rei  niilitaiis  virtus  praestat 
ceteris  omnibus.  Haec  nouien  populo  Eomauo,  haec  huic  urbi  aeternaiu 
gloriam  pejjevit;  haec  orbera  terrarum  parere  huic  imperio  coegit ;  omnes 
iirbanae  res,  omnia  haec  nostra  praeclara  stadia  et  haec  forensis  laus  et  in- 
dustria  latent  in  tutela  ac  praesidio  bellicae  virtutis  :  simul  atque  increpuit 
suspitio  tumultus,  artes  ilico  nostrae  conticiscunt." 

These  two  passages  may  be  thus  translated  :  — 

"  Here  in  our  midst  Servius  carried  on  the  civic  warfare  of  case-answer- 
ing and  drawing  all  sorts  of  legal  instruments,  —  full  of  solicitude  and 
irritation  as  it  is." 

"  You  stay  out  of  bed  at  night  to  answer  your  consultors ;  he  keeps  awake 
that  he  may  lead  his  army  to  a  place  in  time.  You  are  aroused  by  the 
cock,  he  by  the  trumpet ;  you  put  in-  order  an  action,  he  a  line  of  battle. 
Both  of  you  stay  on  the  watch,  you  that  your  clients,  he  that  cities  and 
camps,  be  r  ot  captured  ;  he  knows  how  to  keep  out  the  force  of  the  enemy, 
you  know  how  to  keep  out  the  surface-water  of  a  neighbor  ;  he  is  busy  in 
enlarging  the  Iwundaries  of  the  empire,  you  in  settling  those  of  adjoining 
owners ;  and  if  I  am  to  speak  my  opinion,  it  is  that  military  virtue  exceeds 
all  other.  For  it  has  produced  the  name  and  eternal  glory  of  Eome  ;  it  has 
subjected  the  world  to  our  sway  ;  all  the  affairs  of  the  city,  all  the  re- 
nowned studies,  forensic  fame,  and  activity  of  the  orator,  are  under  the 
protection  of  generalship.  So  soon  as  there  is  a  whisper  of  war,  our  art 
becomes  silent." 


GENERAL  INTRODUCTION.  10 

If  good  strategy  has  stolen  a  march  and  massed  superior 
numbers  upon  the  key  position,  even  faultless  tactics  come 
too  late  to  rescue  the  lagging  general  from  predestined  de- 
feat. Our  wor<l  in  the  vocabulary  of  litigatiou  correspond- 
ing to  Strategy  is  Preparation,  but  we  ha\'e  none  which 
corresponds  to  Tactics.  And  the  word  Preparation  is  rather 
of  colloquial  than  technical  use.  The  distinction  of  the 
right  provision  for  the  battle  from  the  proper  conduct  of 
the  battle  itself,  finds  a  striking  counterpart  when  we  ana- 
lyze the  essentials  of  the  art  of  managing  lawsuits.  For 
in  this  there  must  be  due  performance  of  all  the  duties  of 
preparation,  and  then  the  trial  itself  must  be  rationally 
managed  in  the  opening,  and  on  through  everything  else, 
to  the  attention  with  which  the  final  instructions  of  the 
court  to  the  jury  should  be  watched. 

§  25.  Litigation  thus  appears  to  have  two  leading  nat- 
ural divisions  analogous  to  the  two  of  warfare  just  ex- 
plained. Tlie  fii-st  we  call  Conduct  out  of  Court,  or 
Preparation;  and  this  is  the  subject  of  Book  I.  The 
other  we  term  Conduct  in  Court,  which  we  are  half 
inclined  to  call  Tactics,  from  the  military  nomenclature ; 
and  this  latter  will  be  the  subject  of  Book  II. 

We  remark  here  that  the  chapter  on  New  Trial,  and  that 
entitled  Victory  and  Defeat,  do  not  in  the  strictest  logical 
classification  belong  where  we  have  placed  them  ;  but  as 
everything  in  them  grows  immediately  out  of  the  conduct 
of  a  case  in  court,  and  they  are  very  short,  they  are,  we 
think,  properly  included  in  Book  TI. 

§  2G.  There  is  another  natural  division  of  the  subject 
of  litigation,  preceding  in  the  true  order  the  two  described 
above,  and  we  might  entitle  it  Considcj-ation  of  an  Offered 
Case.     It  has  a  correspondence  in  warfare,  for  the  com- 


20  CONDUCT   OF   LAWSUITS. 

mandcr  must  sit  in  judgment  upon  a  projected  campaign. 
But  as  there  is  so  little  to  say  on  tliis  division  we  have 
assumed  that  it  belongs  to  Book  I.  The  counterpart  of 
warfare  just  mentioned  is  treated  by  military  writers  under 
Strategy. 

§  27.  Litigation  must  not  be  too  elaborately  resembled 
to  warfare.  It  can  be  illustrated  only  at  times  from  the 
latter.  But  as  they  both  concur  in  the  particulars  already 
pointed  out ;  —  that  a  proposed  campaign  or  case  should 
be  well  meditated  in  order  rationally  to  be  declined  or  ac- 
cepted, and  after  acceptance  there  ought  to  be  proAdsion 
of  superior  combinations  before  the  decisive  encounter ; 
that  such  encounter  should  be  carried  on  according  to 
proper  principles  ;  and  further,  that  the  former  is  of  far 
greater  importance  than  the  second  ;  —  it  is  well  to  suggest 
that  the  law  student  may  get  some  useful  hints  from  those 
works  which  set  forth  the  leading  essentials  of  warfare 
scientifically  and  compendiously.^ 

§  28.  In  Book  I.  will  be  told,  as  the  first  half  of  Litiga- 
tion, all  the  things  necessary  to  be  done  before  trial.  And 
it  is  the  anxious  desire  of  the  author  to  possess  the  student 
at  the  very  earliest  moment  of  their  transcendent  impor- 
tance. Here  is  the  special  province  of  the  genius  and  toil 
of  the  lawyer.  It  cannot  be  much  exaggeration  to  say  that 
seventy-five  per  cent  of  the  average  success  in  litigation 
which  is  not  mere  luck,  is  in  the  judicious  acceptance  and 
fit  preparation  of  cases.  Mr.  Harris  concludes,  as  he  says, 
from  a  somewhat  careful  observation,  that  in  five  cases  out 


^  Joniini's  Art  of  War,  and  Marmont's  Spirit  of  Military  Institutions, 
will  be  found  readable  in  the  American  translations,  well  distinguishing 
Strategy  and  Tactics  and  briefly  but  accurately  explaining  the  constituents 
of  each. 


GENERAL  INTRODUCTION.  21 

of  six  he  would  back  the  advocate  and  not  the  case.^  I 
am  without  experience  in  the  administration  of  justice  in 
EngUind,  where  the  attorney  and  junior  counsel  are  the 
organs  of  preparation  and  perhaps  on  the  whole  do  their 
work  as  well  as  it  can  be  done  under  a  system  which  al- 
lows no  intercourse  between  counsel  and  witnesses.  Here, 
in  America,  if  preparation  were  equal  on  both  sides,  I  would 
nearly  always  back  the  better  case  ;  and  if  tliere  were  a  de- 
cided difference,  I  would  in  five  cases  out  of  six  back  the 
better  preparation.  Two  lawyers  of  my  time  were  fre- 
quently opposed.  The  one  was  always  unusually  careful 
to  be  ready,  while  his  forensic  conduct  was  never  brilliant. 
The  preparation  of  the  other  was  negligent,  but  his  exami- 
nation of  witnesses  habitually  wrought  himself  the  greatest 
benefit  and  his  adversary  the  greatest  hurt  possible,  and 
his  argument  was  perfect  in  the  logic  and  persuasion  which 
are  most  effective  in  coui'ts.  His  feats  in  cross-examination 
and  his  taking  speech  always  attracted  crowds  of  delighted 
listeners.  These  admirer.s,  however,  generally  saw  their 
favorite  lose  in  his  matches  with  the  man  who  seemed  his 
inferior.  It  was  nearly  always  the  same  thing,  —  the  lat- 
ter showed  the  weightier  evidence  or  the  better  law  on 
the  controlling  positions,  and  it  plainly  appeared  that  he 
had  succeeded  by  forethought  and  provision. 

§  29.  Under  the  other  head.  Conduct  in  Court,  as  the 
remaining  half  of  Litigaticfli,  will  be  reviewed,  in  Book  II., 
all  the  details  of  the  trial  or  hearing.  This  is  far  simpler 
and  less  difficult  than  the  former,  out  of  which  it  grows 
and  by  which  it  is  mostly  directed  and  shaped.  He  who 
ascribes  a  controlling  influence  to  mere  gifts  of  speech  has 
never  attentively  observed  and  studied  forensic  controversy. 

1  Illustrations  in  Advocacy,  3. 


22  CONDUCT   OF   LAWSUITS. 

Sometimes  they  do,  as  a  sudden  flood,  sweep  away  all  re- 
sistance, but  ill  tlie  main  the  sounder  position  and  superior 
combinations  will  carry  court  or  jury,  tliougli  opposed  by 
the  eloquence  of  Demosthenes. 

And  yet  we  would  not  have  it  inferred  from  the  fore- 
going, that  we  underestimate  good  advocacy.  To  present 
the  material  details  of  your  side  in  the  most  telling  way 
and  the  most  effectually  to  depreciate  those  of  the  other, 
is  indeed  a  great  art.  And  conspicuously  docs  that  lawyer 
tower  above  his  fellows  who  can  with  fitting  words  call 
up  or  lay  the  emotion  which  is  on  the  watch  to  turn  the 
scale.  The  truth  is,  that  i)crfect  management  necessarily 
implies  full  mastery  of  the  principles  elucidated  in  each 
one  of  the  two  Books  of  this  work.  Choate  stands  solitary 
at  the  bar,  in  being  as  studious  of  the  theory  of  oratory  as 
Cicero  and  as  eloquent  as  he  and  Erskinc,  and  yet  bestow- 
ing greater  effort  and  care  upon  the  preparation  of  his 
cases,  rather  than  of  his  speeches. 

§  30.  We  have  thus  brought  into  view  the  outline  and 
scope  of  our  subject.  But  we  wish  our  student  to  note 
here  the  changes  of  standpoint  that  will  be  necessary.  We 
begin  with  considering  an  offered  case  ;  the  next  stand- 
point is  that  of  preparation  generally  ;  the  third  is  that 
of  a  definite  plan  of  management  ;  the  fourth  is  the  open- 
ing of  the  case  and  the  conduct  of  the  evidence  ;  and  the 
last  is  the  argument.  This  brie^  skeleton  of  our  two  Books 
shows  their  unity  as  parts  of  the  same  whole.  We  hope 
that  it  shows  too  that  we  have  taken  the  right  road  along 
which  to  carry  the  student  and  young  practitioner.  And 
surely  every  reflecting  lawyer  will  admit  that  to  keep  to 
but  one  of  the  parts,  as  we  shall  have  cause  in  a  moment  to 
note  of  certain  books,  is  fragmentary  and  faulty  treatment ; 


GENERAL   INTllODL'CTlOX.  23 

for  the  first  part  finds  its  ulterior  object  and  i^uidini^  li^ht 
in  the  second,  and  tlie  second  is  but  a  development  of"  the 
other. 

§  31.  As  an  independent  braueii  of  the  general  subject, 
naturally  succeeding  the  contents  of  the  two  Books,  we 
have  appended  a  chapter  entitled,  The  (Character  of  the 
Successful  Lawyer.  AVe  could  not  ni;)rc  impressively  en- 
force for  the  young  lawyer,  in  a  striking  summary,  the 
importance  of  the  j)rineiples  of  which  we  had  made  a 
detailed  exposition  in  the  two  Books. 

§  32.  We  will  now  make  a  condensed  review  of  the 
better  and  more  common  works  upon  our  subject  and  also 
glance  at  its  remaining  literature. 

That  of  Mr.  Cox  has  never  got  beyond  the  first  volume. 
Its  scope  is  indicated  by  its  title  given  below. ^  The  chief 
value  of  the  work  is  to  be  found  in  its  detailed  treatment 
of  the  examination  of  wituesses,  and  tlie  last  two  chap- 
ters, the  one  being  entitled  The  Defence,  and  the  other  The 
Reply. 

§  33.  jNIr.  Harris's  last  work^  is  really  an  appendix  to 
his  larger  and  more  important  book,  which  has  already  be- 
come famous.^  His  first  work  begins  with  a  chapter  called 
Opening  tlie  Plaintiff's  Case.  Both  of  the  works  are  en- 
tirely devoted  to  forensic  conduct.  The  author  resolutely 
discards  the  irrelevant  topics  which  fill  more  than  two 

1  The  Advooate,  his  Training,  Practice,  Rights,  and  Duties.  By  Ed- 
ward W.  Cox,  Esq.,  Barrister  at  Law.     Vol.  I.,  London,  1852. 

2  Illustrations  in  Advocacy.  By  Ricliard  Harris,  Barrister  at  Law, 
Midland  Circuit.     London,  1884. 

3  Hints  on  Advocacy.  Conduct  of  Cases,  Civil  and  Criminal.  Classes 
of  Witnesses,  and  Suggestions  for  cross-examining  them,  etc.,  etc.  By  tlie 
same.  6th  edition,  further  revised  and  enlarged.  London,  1882.  See 
our  American  Law  Studies,  §  497  et  seq.,  for  a  rather  extensive  notice  of 
an  American  edition. 


24  CONDUCT   OF   LAWSUITS- 

thirds  of  ]Mr.  Cox's  work,  never  straying  from  liis  eliosen 
theme,  which  he  discusses  with  nmcli  attention  to  guiding 
principles  and  great  opulence  of  illustration.  He  has  de- 
cidedly advanced  upon  tlie  performance  of  Mr.  Cox.  Eacli 
book  is  instructive  and  charming  tliroughout.  Especially 
in  the  more  recent  one  is  the  action  in  the  different  cases 
represented  with  the  art  and  effect  of  high  comedy.  We 
almost  feel  that  it  will  be  received  as  evidence  of  our 
carping  ill-nature  when  we  venture  to  suggest  the  follow- 
ing defects. 

In  the  first  place,  as  both  books  are  conceived  and  exe- 
cuted mainly  from  the  standpoint  of  censuring  blunders 
and  mistakes  instead  of  systematically  imparting  essentials, 
their  doctrine  is  on  the  whole  negative  rather  than  positive. 
Next,  there  is  insufficient  note  taken  of  the  declining  influ- 
ence of  mere  advocacy,  as  compared  with  rational  attention 
to  pivotal  points  of  law,  evidence,  or  passion.  But  the 
last  and  greatest  fault  which  we  have  to  mention  is,  that 
the  effect  of  the  bad  or  good  discharge  of  precedent  duties 
upon  the  trial  is  nearly  always  overlooked.  If  it  had  been 
otherwise,  how  nmch  more  intelligible  and  impressive  would 
have  been  such  of  his  examples  as  the  following  :  the 
case  of  murder  in  which  the  Crown  miscarried  because  of 
the  irreconcilable  discrepancy  of  its  own  proofs ;  ^  the  fatal 
question  by  the  defendant's  counsel  to  the  plaintiff  in  the 
breach  of  promise  case,  which  ought  not  to  have  been 
asked  unless  the  questioner  knew  it  could  be  followed  up 
effectively,  cited  above  by  us  to  exemplify  the  result  in  liti- 
gation of  excited  feeling ;  ^  Cockburn's  opening  speech  in 
the  trial  of  Palmer ;  ^  the  opening  speech  of  Hawkins  for 

1  Hints  on  Advocacy,  6th  ed.,  203-205. 

2  Ante,  §  16. 

8   Ibid.,  265  et  seq. 


GENERAL  INTRODUCTION.  25 

the  prosecution,  and  his  cross-examination  of  "Old  Bogle," 
in  the  Tichborne  case/  the  two  speeches  and  the  cross- 
examination,  we  will  stop  to  say,  being  based  upon  the 
deepest  and  exactcst  mastery  of  details  necessarily  made 
out  of  court.  The  important  fact  being  neglected,  that  is, 
that  every  one  was  either  the  shortcoming  from  bad,  or 
the  triumph  of  good  preparation,  these  useful  illustrations 
are  shorn  of  more  than  half  their  proper  force.  Failure 
and  success  can  only  teach  their  lessons  well  by  vividly 
showing  their  real  causes.  Had  Mr.  Harris  brought  for 
himself  into  distinct  apprehension  all  the  operation  of  the 
merits  and  mistakes  of  conduct  out  of  court,  he  would  have 
avoided  the  one-sidedness  which  has  thrown  his  valuable 
work  out  of  poise.  He  has  modernized  much  of  the  great 
Roman  advocate's  teaching  for  our  advantage.  But  sui> 
pose  that,  with  his  high  dramatic  talent,  he  had  brought 
forth  Cicero,  breaking  from  the  pent-up  walks  of  English 
attorney  and  junior  and  like  an  American  counsel  superin- 
tending in  person  the  gathering  of  evidence  against  Yerres, 
which  he  makes  so  complete  that  the  rich  and  powerful 
accused  abandons  his  defence  and  flies  before  the  exami- 
nation of  the  witnesses  for  the  prosecution  is  half  through. 
This  would  have  furnished  the  missing  companion-piece  to 
the  chapter  on  the  defence  of  Roscius,^  fitly  representing 
Cicero's  activity  in  the  great  region  of  preparation,  —  the 
most  important  of  all,  —  which  somehow  the  author  keeps 
his  eyes  away  from. 

When  we  reach  the  Examination  of  Witnesses,  we  will 
make  a  further  criticism  of  Mr.  Cox  and  Mr.  Harris. 

§  34.   Mr.  W^arren's  Duties  of  Attorneys  and  Solicitors  ^ 

1  Illustrations  in  Advocacy,  183-239.  2  ih'nl^  iqq  et  scq. 

3  Am.  ed.,  Albany,  1870. 


26  CONDUCT   OF   LAWSUITS. 

is  given  to  that  part  of"  the  subject  wliicli  is  omitted  by 
Mr.  Cox  and  Mr.  Harris.  He  goes  over  the  whole  of 
preparation  of  eases,  so  far  as  it  is  the  business  in  England 
of  attorneys  and  solicitors,  ' 

§  35.  There  is  also  something  to  be  found  in  the  trea- 
tises on  Evidence  pertinent  to  (jur  chapters  upon  the  exam- 
ination of  witnesses,  and  there  are  books  which  we  have 
not  mentioned  which  touch  special  parts  of  our  subject. 
As  the  last  head  in  this  statement,  wc  must  remind  the 
reader  that  many  good  hints  are  to  be  found  in  the  current 
works  on  legal  study,^  and  in  the  various  Lives  of  Eng- 
lish and  American  lawyers.  Our  acknowledgments  will 
always  disclose  the  use  we  make  of  any  author. 

§  36.  The  s-tudent  and  beginning  practitioner  need 
something  different  from  what  they  will  find  in  the  helpful 
books  just  noticed.  Their  real  desideratum  is  that  all  the 
details  of  litigation  be  fitly  ordered  as  parts  of  a  connected 
whole.  This  cannot  be  done  satisfactorily  in  any  other 
way  than  by  carefully  describing  Preparation,  its  founda- 
tion, commencement,  and  leading  division,  at  the  outset, 
and  then  developing  the  forensic  part  as  the  natural  contin- 
uation and  sequel.  To  give  the  first  alone,  as  Mr.  Warren 
does  in  his  Duties  of  Attorneys  and  Solicitors,  is  to  break 
off  in  the  middle  ;  while  to  handle  only  the  particulars 
of  the  second  part,  as  Mr.  Cox  and  Mr.  Harris  do,  is 
to  overleap  the  right  beginning  and  give  the  last  half  of 
the  subject  inadequate  treatment,  for  effective  advocacy 
is  in  the  main  but  the  exhibition  of  the  results  of  proper 
preparation. 

§  37.  The  special  jurisdictions  of  superior  courts  and 
the  consequent  division  of  the  bar  into  members  of  dif- 

^  See  our  American  Law  Studies,  §§  17-70,  for  a  notice  of  sucli. 


GENERAL  INTRODUCTION.  27 

fcrcnt  functions,  are  passing  away  in  England,  while  in 
Anieriea  it  has  long  been  common  for  the  average  prac- 
titioner to  be  occupied  daily  with  both  preparation  and 
forensic  conduct  of  cases  on  every  side  of  the  court.  The 
course  of  things  shows  that,  amid  the  details  of  the  two, 
there  is  a  unity  which  is  so  real  and  near  the  surface  as  to 
be  discerned  and  practically  appropriated  in  the  first  years 
of  practice.  The  natural  division  of  contentious  members 
of  the  profession  is  not  into  pleaders  and  chancery  and 
common  lawyers,  nor  into  attorneys  and  solicitors  prepar- 
ing cases  on  the  one  hand  and  counsel  managing  them  in 
court  on  the  other  hand  ;  but  it  is  dictated  by  individual 
aptitudes  for  certain  grades  of  legal  employment,  for  office 
or  forensic  work,  for  discovering  and  marshalling  proofs, 
for  ai'guing  law  or  fact.  And  every  member  of  these  nat- 
ural classes,  to  whatever  specialties  he  may  confine  himself, 
will  necessarily  be  engaged  in  gathering  and  considering 
facts  for  actions,  or  defences  and  arguments,  and  in  look- 
ing up  the  law  applicable ;  and  he  must  therefore  have  a 
practical  mastery  of  the  leading  principles  discussed  in  both 
of  our  following  Books.  It  thus  appears  that  complete 
skill  in  any  kind  of  litigated  business  postulates  an  assimi- 
lation of  the  essentials  of  what  we  may  term  the  whole  art 
of  practice.  At  the  end  of  this  Introduction  we  shall  fur- 
ther enforce  the  advantage  of  such  a  work  as  this  aspires 
to  be. 

§  38.  AVc  must  now  say  a  word  as  to  the  materials  at 
our  command.  The  reports  are  the  staple  from  which  the 
general  law  treatises  are  made.  But  while  we  deal  with 
that  particular  subject  which  calls  the  reports  into  being 
and  which  supplies  them  with  the  details  upon  which  their 
opinions  and  judgments  are  founded,  we  can  hardly  ever 


28  CONDUCT  OF  LAWSUITS. 

support  our  propositions  by  reference  to  judicial  rulings. 
The  above-noticed  works  of  Warren,  Cox,  and  Harris  do 
not  cite  the  adjudged  cases  upon  any  principle  of  prepara- 
tion or  advocacy.  Likewise  the  authors  who  discuss  par- 
ticular details  of  our  subject,  as  Proffiitt,  Best,  Greenleaf, 
and  David  Paul  Brown,  —  the  first  briefly  handling  the 
opening  of  the  case,  and  he  and  the  others  treating  the 
examination  of  witnesses,  —  hardly  ever  fortify  any  of  their 
propositions  by  the  authority  of  the  judges. 

§  39.  But  we  will  bring  out  more  clearly  the  small  use 
we  can  make  of  adjudications,  by  now  noticing  the  late 
work  of  Mr.  Wecks,^  which  treats  practising  lawyers  as  a 
subject  of  the  general  law.  As  he  says  in  his  Preface,  he 
cites  "  some  five  thousand  cases."  These  are  collected 
from  the  English  and  American  reports.  In  addition  to 
the  introductory  and  historical  matter,  such  topics  as  these 
fill  the  chapters  :  — 

The  Vocation  of  the  La\\7er,  and  General  Nature  of  his 
Office.  —  Admission  to  Practice.  —  Summary  Jurisdiction 
of  Courts  over  Lawyers,  Striking  them  from  the  Rolls, 
Suspension  from  Practice,  etc.  —  Privileges  of  Attorneys 
as  Officers  of  the  Court.  —  Disability  of  the  Attorney 
by  reason  of  his  Profession.  —  His  Liability  to  Third  Par- 
ties. —  Privilege  of  Confidential  Communications.  —  Re- 
tainer, Authority  to  Appear,  and  Appearance.  —  His 
Authority  and  Powers  by  virtue  of  his  Retainer.  —  Lia- 

1  Attorneys  at  Law.  A  Treatise  on  Attorneys  and  Counsellors  at  Law, 
comprising  the  Rules  and  Legal  Piineiples  applicable  to  the  Vocation  of 
the  Lawyer  and  those  governing  the  Relation  of  Attorney  and  Client.  By 
Edward  P.  Weeks.     San  Francisco,  1878. 

Our  student  is  reminded  that  Mr.  Weeks  uses  the  word  Attorney  in  its 
extensive  American  sense,  wherein  it  is  synonymous  with  practitioner,  or 
practising  lawyer,  and  not  in  its  technical  English  meaning. 


GENERAL   INTRODUCTION.  29 

bility  of  Client  to  Attorney,  Attorney's  Compensation,  and 
his  Remedy  by  Action  or  Lien  to  receive  or  secure  Com- 
pensation. 

§  40.  Comparing  the  foregoing  enumeration  with  the 
table  of  contents  prefixed  to  this  work,  it  will  be  seen  that 
our  peculiar  subject,  both  in  essence  and  details,  departs 
widely  from  that  of  Mr.  Weeks,  although  the  two  are 
closely  related.  We  omitted  above  the  titles  of  his  elev- 
enth and  twelfth  chapters  in  order  to  give  them  emphasis 
by  particular  comment  here.  The  pertinent  parts  of  these 
titles  are  :  Duties  of  Attorneys  towards  Clients.  — Liability 
of  Attorneys  to  their  Clients  ;  Negligence.  There  is  much 
in  these  chapters  with  which  we  are  not  concerned,  but 
there  occur  in  them  such  subheads  as  these,  which  either 
touch  or  fall  within  our  particular  field  :  — 

Legal  Duties  towards  Client.  —  Duties  of  Preparing  for 
Trial.  —  Liability  for  Mistakes  ;  for  Blunders  in  Process 
and  Formal  Proceedings ;  for  Ignorance  of  the  Law.  — 
Attorney  is  not  expected  to  guaranty  Success.  —  Care  re- 
quired. —  Diligence  required.  —  Negligence  in  Conduct 
of  a  Cause.  —  Liability  for  disclosing  Secrets.  —  Liability 
for  Abandonment  of  Suit. 

These  last-mentioned  topics  are  some  of  the  special  ones 
which  concern  us  now.  We  must  note  that  Mr.  Weeks's 
treatment  of  them,  confined  as  he  is  to  educing  the  law 
from  the  cases,  —  which  at  this  place  are  few  and  far  be- 
tween, —  is  extremely  general  and  brief. 

§  41.  This  notice  of  the  authors  who  have  preceded  us 
as  to  parts  of  our  chosen  theme,  and  especially  the  review 
of  Mr.  Weeks's  treatise,  which  practically  exhausts  the 
cases,  show  that  we  must  resort  somewhere  else  than 
to  the  reports.      And  we  may  say,  in  general,  that  our 


80  CONDUCT  OF   LAWSUITS. 

materials  can  be  found  nowlierc  else  than  in  these  two 
places  :  — 

1.  The  writings  of  those  who  have  discussed  any  divis- 
ion of  our  subject.  (The  character  of  these  works  need 
not  be  further  described.) 

2.  The  great  source  always  open  to  correct  the  errors  of 
writers  or  to  supply  their  deficiencies ;  that  is,  experience 
and  observation  in  practice. 

§  42.  We  must  say  spmething  as  to  the  proj^er  use  of 
these  sources.  We  have  indicated  above  certain  defects 
of  the  leading  authors.  But  for  all  of  these,  as  their  pages 
contain  large  store  of  discussion  and  illustration  of  our 
topics,  they  must  receive  careful  examination.  And  the 
other  works,  especially  those  belonging  to  the  department 
of  legal  biography,  deserve  attention. 

But  the  second  source  requires  a  little  more  notice  here 
than  the  other.  There  are  certain  current  methods  of  do- 
ing legal  business.  They  are  acquired,  in  the  main,  from 
the  traditions  of  the  bar  and  by  the  training  in  professional 
customs  and  modes  given  by  practice.  To  make  a  full 
collection  of  them  demands  that  one  have  combined  with 
a  considerable  experience  in  a  multifarious  business  a  long 
and  attentive  search.  They  do  not  always  lie  on  the  sur- 
face. There  are  many  principles  of  preparation,  of  advo- 
cacy, or  of  other  branches  of  our  subject,  which  —  to  apply 
the  language  of  Lord  Bacon  —  "  the  wisest  and  deepest 
sort  of  lawyers  have  in  judgment  and  in  use,  though 
they  be  not  able  many  times  to  express  and  set  them 
down."  ^ 

And  after  these  details  are  brought  into  distinct  con- 

1  Preface  to  the  Maxims  of  the  Law.  See  our  American  Law  Studies, 
§§  457,  460,  for  another  use  of  this  striking  passage. 


GENERAL  INTRODUCTION.  31 

sciousiiess  and  the  collection  indicated  is  complete,  there 
must  be  proper  co-ordination  of  the  whole  and  the  parts. 
In  doing  this  important  work  care  must  be  taken  to  under- 
stand the  exact  use  which  every  particular  naturally  serves, 
so  that  it  be  assigned  to  its  proper  place. 

§  43.  Some  years  ago,  when  the  author  had  become  busy 
in  a  general  practice,  he  often  found  himself  trying,  in  his 
unemployed  moments,  to  grasp  and  arrange  the  cardinal 
principles  of  the  right  management  of  lawsuits.  He  began 
to  devote  his  leisure  to  the  literature  and  study  of  the  sub- 
ject, and  in  due  time  he  wrote  the  book  which  appeared  in 
187 o.^  That  book  has  been  in  mind  ever  since.  I  hope 
that  by  this  edition,  which  gives  tlie  results  of  much  addi- 
tional research  and  thought,  I  have  bettered  it  throughout. 

§  44.  If  I  have  realized  the  purpose  of  my  long  and 
studious  effort,  this  result  will  prove  of  especial  benefit 
to  students  and  those  beginning  practice  in  these  two 
respects  :  — 

1.  It  will  impressively  teach  that  a  very  large,  and  the 
leading,  part  of  the  lawyer's  peculiar  equipment  is  to  be 
sought  in  other  places  than  the  constitutions,  statutes,  and 
reports.  While  these  must  receive  lifelong  attention,  it 
must  be  remembered,  as  Lord  Bacon  says  of  Studies,  that 
"  they  teach  not  their  own  use."  Without  this  proper  use, 
the  profoundest  master  of  the  law  sources  is  of  no  service 
except  to  those  of  his  wiser  brethren  who  manage  to  turn 
him  into  a  book  of  reference. 

2.  Advancement  in  an  art  is  usually  an  improvement  of 
its  methods ;  and  this  improvement  is  generally  because  a 
clearer  comprehension  of  the  end  and  purpose  of  the  art 

1  Practical  Suggestions  for  the  Management  of  Lawsuits  and  Conduct 
of  Litigation  both  in  and  out  of  Court. 


32  CONDUCT  OF  LAWSUITS. 

has  led  to  the  discovery  of  easier,  more  direct  and  certain 
ways.  The  stage  in  which  absorption  and  imitation  are 
the  only  teachers  cannot  hist  long.  In  spite  of  the  antip- 
athy which  all  practical  and  earnest  workers  entertain 
towards  much  drill  in  principles,  they  note  that  the  super- 
eminent  masters  of  every  art  have  often  taught  clearer 
views  of  its  real  theory.  The  contributions  of  Cicero  in 
his  rhetorical  works  to  advocacy  ;  the  conversations  of  Na- 
poleon upon  the  conduct  of  war,  embodied  by  Marmont  in 
his  book  mentioned  above  ;  the  rich  legacy  to  the  profes- 
sion of  Scarlett's  Autobiography,  which  reflects  the  light 
of  the  sun  on  the  true  modes  of  management  in  court ; 
Choate's  toil  upon  his  cases,  and  what  we  are  told  of  the  ob- 
jects at  which  he  aimed  in  his  study  and  practice ;  —  these 
are  ample  proofs  of  our  proposition  last  advanced.  There 
must  ever  come  the  conscious  and  rational  study  by  all  its 
members  of  the  principles  of  the  chosen  occupation,  as  a 
part  of  education  for  it.  And  that  day  has  come  in  the  law, 
as  every  lawyer  may  convince  himself  by  recalling  the  fruit- 
less searches  of  his  first  years  at  the  bar,  or  by  observing  the 
eagerness  with  which  his  young  brethren  read  everything 
which  promises  to  reveal  the  precious  secret.  I  will  alter 
a  passage  of  the  Advancement  of  Learning,  in  which  Lord 
Bacon  regrets  that  "  the  wisdom  touching  Negotiation  or 
Business  hath  not  been  hitherto  collected  into  writing,  to 
the  great  derogation  of  learning,  and  the  professors  of 
learning,"  in  order  to  particularize  and  show  in  a  striking 
light  the  value  of  the  manual  which  I  would  make  :  — 

"  But  for  the  wisdom  [that  is,  the  rationale]  of  [legal] 
business  .  .  .  there  be  no  books  of  it,  except  some  few 
scattered  advertisements  that  have  no  proportion  to  the 
magnitude  of  this  subject.  —  For  if  books  were  written  of 


GENERAL   INTRODUCTION.  33 

this  ...  I  doubt  not  but  learned  men,  with  mean  expe- 
rience, would  far  excel  men  of  long  experience  without 
learning,  and  outshoot  them  in  their  own  bow." 

§  45.  The  methods  which  must  be  applied  day  by  day 
in  every  sort  of  practice  sliould  be  fully  tauglit  and  the 
student  should  exercise  in  them  until  every  one  will  come 
automatically  as  it  is  needed.  It  is  the  mastery  of  these 
methods  which  the  author  seeks  to  give  his  students.  And 
that  this  mastery  is  the  real  efficiency  of  the  practitioner,  is 
the  great  justification  of  his  undertaking. 


BOOK  I. 
CONDUCT   OUT   OP   COURT. 


BOOK  I. 
CONDUCT  OUT  OF  COURT. 


CHAPTER  I. 

A   CASE   OFFERED. 

§  46.  Nearly  all  of  the  principles  of  preparation  both 
on  law  and  fact  are  necessarily  involved  in  the  proper  con- 
sideration of  a  contemplated  action  or  defence  by  the  coun- 
sel to  whom  they  are  submitted  for  advice.  But  we  are 
now  to  discuss  those  principles  only  in  such  a  general  out- 
line as  suffices  for  the  smaller  scope  of  this  chapter,  leaving 
the  fuller  details  to  be  worked  out  further  on.  Where 
persons  are  charged  with  serious  offences,  or  hard  demands 
are  resolutely  urged  against  them,  the  la^\7er  sees  that 
nothing  is  to  be  thought  of  but  resistance  to  the  bitter 
end.  These  are  exceptional  instances,  and  we  have  noth- 
ing to  do  with  them  here  but  to  mention  them.  It  is  our 
business  to  treat  the  cases  in  which  tlie  party  has  a  choice 
and  he  can  be  wisely  counselled  either  to  yield  to  his  adver- 
sary or  to  cross  swords  with  him. 

§  47.  When  a  lawyer  is  consulted  as  to  one  of  these  last- 
mentioned  cases  —  whether  the  client  meditates  the  bring- 
ing of  a  suit,  or  the  contest  of  one  menaced  or  already 
brought  against  himself —  it  is  first  in  order  to  make  such 
an  examination  as  will  qualify  him  to  give  liis  voice  for  or 


38  CONDUCT   OUT   OF   COURT. 

against  litigation.  This  examination  may  disclose  that 
the  case  is  hopeless.  If  so,  it  is  better  that  tlie  client  be 
made  to  understand  it  at  once  and  submit  himself  to  the 
inevitable  command  of  fortune,  than  that  he  be  fed  with 
delusive  hopes  for  a  while  and  at  the  last  be  taxed  with 
heavy  fees  and  costs,  which  he  cannot  avoid  feeling  to  be 
most  oppressive  and  unjust  when  he  loses  the  matter  in 
controversy. 

§  48.  This  preliminary  examination  suggested  in  the 
last  section  is  now  to  engage  our  attention.  We  remark 
in  the  beginning  that  there  are  many  cases  which  give 
hardly  any  trouble.  They  may  turn  upon  a  single  issue  of 
fact  or  law,  and  the  true  decision  is  manifest.  Two  con- 
structions of  a  statute  may  be  urged  one  of  which  is  palpa- 
bly right,  or  there  may  be  a  conflict  between  two  witnesses. 
Infinite  study  will  often  add  no  difficulty  nor  abstruseness  to 
these  easy  cases.  Here  the  lawyer  consulted  can  promptly 
tell  what  is  to  be  done.  But  cases  of  intricacy,  multifa- 
riousness, and  perplexity,  of  doubt  and  difficulty,  impose 
great  labor  upon  the  lawyer  ;  and  we  will  now  set  forth 
how  he  is  to  look  into  them  before  he  is  ready  to  give  an 
opinion. 

§  49.  He  is  to  master  the  details.  Ordinarily  his  first 
instruction  is  to  be  had  from  the  client.  The  latter  should 
be  encouraged  to  tell  all  of  importance  that  he  knows. 
And  we  may  here  make  a  special  application  of  a  passage 
from  Lord  Bacon's  essay.  Of  Despatch  :  — 

"  Give  good  hearing  to  those  that  give  the  first  informa- 
tion in  business  ;  and  rather  direct  them  in  the  beginning 
than  interrupt  them  in  the  continuance  of  their  speeches  : 
for  he  that  is  put  out  of  his  own  order  will  go  forward  and 
backward,  and  be  more  tedious  while  he  waits  upon  his 


A  CASE   OFFERED.  39 

memory  than  he  could  have  been  if  he  liad  gone  on  in  his 
own  course.  But  sonietinics  it  is  seen  that  the  moderator 
is  more  troublesome  than  the  actor." 

After  you  have  directed  in  the  beginning,  according  to 
Lord  Bacon,  do  not  snub  the  client.  His  flow  cannot  be 
perpetual.  He  will  go  through  with  his  communication, 
giving  something  like  a  complete  outline.  When  he  makes 
a  pause  is  the  time  to  question. 

§  50.  We  now  add  a  quotation  from  Quintilian,  which 
is  more  detailed  in  its  directions,  and  which  reads  as  if  it 
were  written  by  an  experienced  counsel  of  our  time  :  — 

"  Let  us  allow  plenty  of  time  .  .  .  and  a  place  of  inter- 
view free  from  interruption  to  those  who  shall  have  occa- 
sion to  consult  us,  and  let  us  earnestly  exhort  them  to  state 
every  particular  off-hand,  however  verbosely  or  however  far 
they  may  wish  to  go  back  ;  for  it  is  p  less  inconvenience  to 
listen  to  what  is  superfluous  than  to  be  left  ignorant  of 
what  is  essential.  Frequently,  too,  the  orator  will  find 
both  the  evil  and  the  remedy  in  particulars  which  to  the 
client  appeared  to  have  no  weight  on  cither  side  of  the 
question.  Nor  should  a  pleader  have  so  nuich  confidence 
in  his  memory  as  to  think  it  too  great  trouble  to  write 
down  what  he  hears. 

§  5L  "Nor  should  he  be  content  with  hearing  only 
once  :  the  client  should  be  required  to  repeat  the  same 
things  again  and  again  ;  not  only  because  some  things 
might  have  escaped  his  memory  at  the  first  recital,  espe- 
cially if  he  be,  as  is  often  the  case,  an  illiterate  person  ;  but 
also  that  we  may  see  whether  he  tells  exactly  the  same 
story  ;  for  many  state  what  is  false,  and,  as  if  they  were 
not  stating  their  case,  but  pleading  it,  address  themselves 
not  as  to  an  advocate,  but  as  to  a  judge.     We  must  never 


40  CONDUCT  OUT  OF  COURT. 

therefore  place  too  much  reliance  on  a  client ;  but  he  must 
be  sifted  and  cross-examined,  and  obliged  to  tell  the  truth  ; 
for  as  by  physicians  not  only  apparent  ailments  are  to  be 
cured,  but  even  such  as  are  latent  are  to  be  discovered, 
even  though  the  persons  who  require  to  be  healed  conceal 
them,  so  an  advocate  must  look  for  more  than  is  laid  be- 
fore him.  .  ,  .  The  client  must  be  questioned  sharply, 
and  pressed  hard  ;  for  by  searching  into  every  particular 
we  sometimes  discover  truth  where  we  least  expected  to 
find  it. 

§  52.  "  In  a  word,  the  best  advocate  for  learning  the 
merits  of  a  cause  is  he  that  is  least  credulous ;  for  a  client 
is  often  ready  to  promise  everything,  offering  a  cloud  of 
witnesses  and  sealed  documents  quite  ready,  and  averring 
that  the  adversary  himself  will  not  even  offer  opposition  on 
certain  points.  If  it  is  therefore  necessary  to  examine  all 
the  writings  relating  to  a  case,  it  is  not  sufficient  to  inspect 
them  ;  they  must  be  read  through  ;  for  very  frequently  they 
are  either  not  at  all  such  as  they  were  asserted  to  be,  or 
they  contain  less  than  was  stated,  or  they  are  mixed  with 
matters  that  may  injure  the  client's  cause,  or  they  say  too 
much  and  lose  all  credit  from  appearing  to  be  exaggerated. 
We  may  often,  too,  find  a  thread  broken,  or  wax  disturbed, 
or  signatures  without  attestation  ;  all  which  points,  unless 
we  settle  them  at  home,  will  embarrass  us  unexpectedly  in 
the  forum  ;  and  e\adence  which  we  are  obliged  to  give  up 
will  damage  a  cause  more  than  it  would  have  suffered  from 
none  having  been  offered."  ^ 

§  53.  This  passage,  both  in  its  exhortation  to  look 
with  a  sceptical  spirit  into  every  part  of  the  case  and 
its   warnings   against   the   biased   representations   of  the 

1  Institutes,  12.  8.  7-13  (Watson's  Translation). 


A  CASE   OFFERED.  41 

party,  deserves  the  meditation  of  every  lawyer.  If  the 
advice  of  the  celebrated  author  was  wise  in  his  day,  it 
is  more  valuable  now.  The  present  time  gives  a  greater 
attention  to  particulars,  and  it  is  logical  rather  than  rhe- 
torical as  the  past  was.  Everything  debated  is  looked  at 
more  closely.  Preparation  becomes  more  laborious,  and 
trials,  arguments,  and  instructions  of  the  court  slowly  in- 
crease in  length,  year  by  year.  The  investigations  in 
chambers  and  of  the  forum,  in  common  with  those  of 
science,  grow  more  careful  and  accurate.  And  conse- 
quently much  must  be  added  to  the  suggestive  and 
profitable  monitions  of  Quintilian. 

§  54.  There  cannot  be  excessive  patience  with  the  cli- 
ent, provided  the  counsel  keep  him  from  wandering.^  Even 
his  complaints  and  scoldings,  when  a  few  interviews  have 
emboldened  him,  should  be  attended  to,  for  they  are  often 
the  throes  of  difficult  expression  of  an  important  fact  or 
view.  Do  not  tire  of  his  repetitions.  And  follow  the  ex- 
ample of  the  old  lawyer,  who  always  said  to  his  consulter, 
"  Be  at  pains  to  tell  me  all  the  bad,  for  I  will  myself  find 
out  all  the  good."  After  eliciting  his  own  knowledge  from 
the  client,  he  should  be  questioned  exhaustively  as  to  every 
quarter  where  other  material  facts  may  exist.  He  can 
usually  mention  persons  who  witnessed  important  parts  of 
the  transaction  in  hand ;  he  may  have  an  inkling  of  rele- 
vant writings  and  of  their  whereabouts  ;  or  he  may  be  able 
to  tell  of  circumstances  which  have  a  bearing  upon  the 
case. 

§  55.  The  lavvyer  must  resort  at  once  to  the  accessible 
sources  of  information  other  than  the  client.  These  sources 
are  usually  witnesses  and  documents.     And  it  is  to  be  here 

1  Cf.  our  American  Law  Studies,  §  1184. 


42  CONDUCT   OUT   OF   COURT. 

suggested,  that  by  reason  of  his  cxperieiici)  and  training 
much  valuable  evidence  of  different  kinds  will  occur  to 
him  which  lias  not  been  thought  of  by  the  client.  The 
witnesses  should  be  examined  in  person  if  possible,  and 
not  by  proxy.  They  can  be  brought  to  some  quiet  place, 
and  the  lawyer  must  exhaust  their  knowledge  both  of  the 
favorable  and  unfavorable.  The  client  is  often  seriously 
mistaken  as  to  their  testimony.  Besides  his  inability  to 
grasp  and  communicate  their  meaning,  he  is  warped  by  in- 
terest and  passion,  and  he  therefore  exaggerates  their  testi- 
mony. Very  often,  too,  his  ignorance  will  blind  him  to 
great  advantages  existing  where  he  shrinks  from  fancied 
peril.  He  may  be  unbiased  and  unexcited  in  a  high  degree, 
yet  he  is  not  trained  to  sift  and  probe  evidence  and  he  does 
not  know  the  law.  There  may  be  facts  incontestably  sup- 
porting his  case,  Avhich,  from  the  lack  of  professional  talent, 
he  will  fail  to  find  ;  or  understanding  some  of  the  testimony 
well,  but  misunderstanding  other  parts  of  it,  he  may  build 
upon  a  seemingly  firm  foundation,  which  will  sink  away  as 
soon  as  the  whole  is  properly  collated. 

§  56.  If  there  are  relevant  documents,  the  lawyer  should 
be  satisfied  with  nothing  but  the  originals,  or,  if  these 
cannot  be  had,  with  copies  carefully  made  and  properly 
executed. 

I  add  an  example  of  a  number  of  examiners  of  an  impor- 
tant paper  falling  into  the  same  error.  A  testator  had  thus 
limited  certain  property  :  "  To  be  used  only  for  the  sup- 
port and  maintenance  of  each  of  them  [his  daughters],  and 
the  education  and  maintenance  of  the  children  of  each  of 
them."  Some  three  or  four  copyists,  each  acting  indepen- 
dently of  the  others,  gave  the  item  just  quoted  as  follows : 
"  To  be  used  only  for  the  support  of  the  children  of  each 


A  CASE   OFFERED.  43 

of  them."  Several  certified  copies  had  been  made,  and  but 
one  liad  the  words  as  first  quoted.  A  controversy  occurred 
between  the  counsel  on  different  sides  of  a  case  involving 
the  construction  of  this  will  as  to  the  true  contents  of  the 
item  mentioned.  To  settle  it,  one  of  them,  interested  to 
increase  the  estate  of  tiie  testator's  grandchildren,  wrote 
to  the  surrogate  of  another  county  who  had  the  custody 
of  the  paper,  stating  the  contention  without  disclosing  his 
side,  and  asking  for  the  truth.  The  surrogate,  thus  put 
upon  the  alert,  inspected  both  the  record  and  the  original 
will  with  particular  pains  and  certified  the  same  mistake. 
Of  course  our  lawyer  felt  that  his  case  was  sure.  But 
as  he  could  not  get  his  adversaries  to  admit  the  words  to 
be  as  he  contended,  he  examined  for  himself  and  to  his 
great  surprise  found  that  the  solitary  copy  was  right  and 
all  the  others  wrong. 

A  writing  often  refers  to  another  or  adopts  it  in  whole 
or  in  part.  Frequently  there  are  several  writings,  made 
contemporaneously  or  at  different  times,  which  must  be 
compared  before  the  precise  effect  of  any  one  of  them  can 
be  ascertained.  A  document  may  contain  a  power  or  an 
authority  to  which  another  must  conform  strictly  in  order 
to  be  of  force.  There  are  often  special  requirements  of 
form  or  execution  for  a  particular  writing.  There  are 
sufticicnt  hints  in  this  place  of  the  great  care  and  pains 
which  the  counsel  must  now  and  then  bestow  upon  doc- 
umentary evidence  before  he  is  qualified  to  estimate  it 
accurately. 

§  57.  We  Avill  enforce  our  counsels  by  gi^^ng  a  few  ex- 
amples of  miscarriages  resulting  from  neglecting  to  make  a 
proper  examination  of  tlie  testimony  before  it  was  offered. 
An  inspection  of  the  paper  has  disclosed  it  to  be  of  less 


44  CONDUCT  OUT   OF   COURT. 

age  than  the  docuineiit  purported  on  its  face  to  be.  I 
have  seen  more  than  once  a  writing  put  in  evidence,  recit- 
ing that  it  was  executed  anterior  to  1861,  but  which  was 
disproved  because  tlie  paper  was  the  inferior  and  unmis- 
takable kind  manufactured  by  the  Southern  mills  during 
the  last  years  of  the  late  civil  war. 

On  a  trial  of  an  ejectment,  the  counsel  making  the  gen- 
eral reply  for  the  plaintiff  pointed  out  that  the  grant  which 
the  defendant  claimed  to  have  received  from  a  county  under 
a  law  of  the  State  authorizing  it  purported  on  its  face  to 
be  some  years  older  than  the  act  of  the  legislature  organiz- 
ing the  county,  and  thus  convinced  the  jury  that  the  grant 
was  a  clumsy  forgery. 

I  remember  seeing  a  trial  suspended  late  in  the  after- 
noon, the  defendant  closing  his  evidence  with  a  strong  at- 
tack upon  the  character  of  the  plaintiff,  who  had  made  a 
witness  of  himself  to  prove  some  material  facts.  His  law- 
yer charged  him  to  come  the  next  morning  provided  with 
witnesses  to  support  his  character.  He  came  with  a  cloud. 
The  first,  after  showing  under  examination  that  he  was  well 
acquainted  with  the  character  in  question,  answered  that 
it  was  very  bad ;  the  next  made  it  worse  ;  and  a  third, 
put  up  in  desperation,  could  find  no  sufficient  language  to 
describe  the  vileness  of  the  plaintiff  and  his  unhesitating 
disbelief  of  him  when  under  oath.  Here  the  support  of 
the  plaintiff  was  abruptly  stopped.  It  was  difficult  for  the 
lookers  on  to  decide  which  was  the  more  amusing,  —  the 
chagrin  of  the  plaintiffs  counsel,  or  the  disappointment  of 
the  witnesses  not  examined,  whose  countenances  mani- 
fested great  eagerness  to  finish  properly  what  had  been 
so  well  begun. 

The  damaging  effect  of  a  surprise  like  the  last  is  not  to 


A  CASE   OFFERED.  45 

be  calculated.  It  always  strengthens  the  adversary,  it  dis- 
concerts the  counsel  encountering  it,  causes  the  jury  to 
laugh  at  him  and  his  case,  and  excites  them  to  complete 
the  joke  by  finding  against  him  even  when  his  evidence 
may  preponderate. 

§  58.  We  give  another  illustration  of  the  importance  of 
sifting  witnesses  before  it  is  decided  to  act  upon  their  tes- 
timony.    It  is  told  by  INIr.  Warren. 

"  Not  long  ago  ...  an  action  of  trespass  was  tried 
before  INIr.  Justice  Coleridge,  in  which  a  nonsuit  ensued 
almost  immediately  after  the  first  and  only  witness  had  got 
into  the  box  ;  for  it  turned  out  that  he  had  not  witnessed 
the  assault,  and  that  all  he  knew  was  from  the  plaintiff, 
who  had  told  him  what  had  happened.  The  judge  was 
convulsed  with  laughter,  as  also  were  the  whole  court,  — 
every. one,  in  short,  except  the  plaintiff  and  his  attorney. 
How  could  this  case  have  been  got  up  ?  It  is  evident  that 
the  attorney  must  have  contented  himself  with  a  hasty  in- 
quiry from  his  client  what  was  the  name  of  his  ^vitness, 
and  what  it  was  that  he  could  prove."  ^ 

§  59.  The  blunders  of  relying  on  documents  written 
upon  paper  manufactured  after  their  alleged  execution, 
of  resting  a  defence  upon  a  grant  which  was  a  palpable 
forgery,  of  damning  one's  character  by  his  ovn\  ^vitnesses, 
and  of  bringing  an  action  upon  the  expected  testimony  of 
a  person  who  could  only  repeat  what  he  had  heard  from 
the  plaintiff,  would  have  been  avoided  if  the  lawyers  when 
first  consulted  had  kept  their  eyes  open,  and  industriously 
looked  into  the  facts.  There  occur  in  ordinary  practice 
but  few  parallels  of  the  great  carelessness  just  exemplified. 
Yet  there  are  not  many  lawyers  who  study  the  case  enough 
1  Duties  of  Attorneys,  Am.  ed.,  169. 


46  CONDUCT   OUT   OF   COURT. 

before  they  advise  action.  The  positiveness  and  confidence 
of  the  client  shonld  be  disregarded.  He  sliould  be  used 
mainly  as  an  index  and  guide  to  the  evidence  ;  and  all  ac- 
cessible information  should  be  collected,  every  pertinent 
document  scrutinized,  and  every  possible  witness  exhaust- 
ively questioned,  before  the  lawyer  confidently  advises  to 
litigate  or  not. 

§  GO.  We  will  strengthen  our  counsels  with  two  perti- 
nent excerpts  from  Mr.  Warren,  which  modernize,  as  it 
were,  the  quotation  from  Quintilian  made  above.  "  Your 
clients  are  entitled  to  your  best  personal  exertions  on  their 
behalf.  You  are  bound  to  look  yourselves,  and  that  pa- 
tiently and  thoroughly,  into  the  affairs  on  which  they  con- 
sult you,  however  troublesome  and  comparatively  thankless 
the  task  ;  thankless,  I  mean,  because  of  your  trouble  being, 
as  it  frequently  is  and  must  be,  inadequately  recompensed. 
You  have  undertaken  the  duty,  and  you  nmst  go  through 
with  it  heartily,  never  devolving  on  subordinates  or  others 
that  which  the  law  exacts  from  yourselves.  An  indolent, 
capricious  humor  may  easily  betray  you  into  inextricable 
difficulties  and  alarming  liabilities.  Apply  therefore  your 
minds  closely  to  the  transaction,  as  though  your  own  inter- 
ests were  concerned.  Do  not  precipitately  act  upon  your 
client's  statements  as  to  such  and  such  being  facts,  but  as- 
certain for  yourselves  if  they  be  facts.  It  is  your  bounden 
duty  to  do  so ;  and  it  will  not  afterward  avail  you  as  a 
defence,  when  your  professional  conduct  is  challenged  by 
a  disappointed  client,  that  you  had  relied  on  his  statements, 
if  you  had  the  means  of  ascertaining  the  correctness  of 
them,  but  neglected  to  do  so.  It  will,  when  challenged, 
be  for  you  to  prove  your  searches,  —  your  inquiries,  —  that 
you  went  to  tliis  jierson,  wrote  to  tliat,  and  were  duly  in 


A  CASE  OFFERED.  47 

attendance  at  the  proper  time  and  place.  How  intolerably 
mortifying  for  you  to  have  your  duties  delineated  with  cruel 
precision  by  the  judge  sununiiig  up  aydiui^t  you  in  an  action 
for  negligence  brought  by  your  client,  or  by  yourself  against 
him  for  your  bill  [sic],  —  but  unsuccessfully.  See  in  Wil- 
son V.  Tucker,  3  Stark.  N.  P.  154,  the  consequence  of  an 
attorney's  acting  on  his  client's  representation  concerning 
a  fact.  That  client  had  furnished  him  with  an  official  ex- 
tract from  a  will  at  Doctors'  Commons  for  the  purpose  of 
the  client's  advancing  a  sum  of  money  on  the  security  of 
a  legacy  bequeathed  in  the  will  to  the  borrower.  The  at- 
torney, relying  on  the  extract  with  which  his  client  had 
furnished  him,  completed  the  transaction,  counsel  prepar- 
ing the  requisite  instrument.  But  it  turned  out  that  in 
the  original  will  there  was  a  clause  which  did  not  appear 
in  the  extract,  .  .  .  such  clause  rendering  the  security  ut- 
terly worthless !  On  this  the  client  turned  round  on  his 
attorney,  sued  him  for  negligence,  and  recovered  from  him 
every  farthing  of  the  money  (£210)  which  the  client  had 
advanced  on  the  faulty  security  !  Hear  what  Lord  Ten- 
terden  told  the  jury  :  '  The  complaint  is  that  the  attorney 
did  not  go  to  Doctors'  Connnons  and  examine  the  will  it- 
self. I  am  of  opinion  that  by  law  it  is  the  duty  of  an  at- 
torney not  to  content  himself  with  a  partial  extract  from  a 
will,  unless  something  pass  between  himself  and  his  client 
which  shows  that  it  is  unnecessary  to  consult  the  original.' 
There  was  contradictory  evidence  given  here;  the  plain- 
tiff's witnesses  saying  that  the  client  had  requested  his 
attorney  to  take  all  pains  and  examine  the  will  ;  the  de- 
fendant's witnesses,  on  the  other  hand,  stating  that  the 
client  had  told  the  attorney  that  the  former  had  made  all 
requisite  inquu-ies  as  to  the  sufficiency  of  the  security,  and 


48  CONDUCT  OUT  OF  COURT. 

requested  liis  attorney  merely  to  prepare  the  deed  and  com- 
plete the  transaction.  The  plaintiff's  witnesses,  however, 
were  believed,  and  he  succeeded.  Would  that  attorney 
ever  again  be  guilty  of  this  slipshod  mode  of  doing  busi- 
ness ?  Assuredly  not ;  and  take  care  yourselves  never  to 
be  so."i 

§  61.  Though  the  case  cited  above  by  Mr.  Warren  was 
one  of  neglect  of  what  we  term  office  business,  the  princi- 
ple announced  therein  by  Lord  Tenterden  is  also  the  re- 
quirement by  the  law  of  the  attorney  who  is  collecting  the 
facts  upon  which  litigation  should  be  discouraged  or  rec- 
ommended. Mr.  Warren  proceeds  as  follows,  and  what 
he  says  is  fully  in  place  here :  — 

"  I  repeat  then,  as  a  general  rule,  never  rest  satisfied 
w^ith  nor  act  upon  the  mere  representations  of  clients 
where  you  have  the  means  of  ascertaining  how  the  facts 
really  stand.  And  above  all  eschew  a  tendency  to  super- 
ficial and  slovenly  habits  of  business ;  ever  remembering 
that  you  have  not  only  your  own  client  to  call  in  question 
your  conduct  and  your  motives,  but  also  an  opponent  to 
deal  with,  whose  duty  and  interest  it  is  rigorously  to  scan 
the  propriety  of  your  acts."  ^ 

§  62.  The  second  quotation,  which  we  now  give,  is  still 
more  to  the  point. 

"  Nothing  is  easier  than  to  issue  a  writ ;  but  if  improvi- 
dently  issued,  it  will  by  and  by  come  back  to  you  with  an 
awful  tale  of  vexatious  and  mortifying  consequences.  In- 
quire in  every  direction  into  facts  ;  see  your  client  himself; 
ask  for  and  look  at  his  documents,  and  consider  them  well  ; 
go  to  the  witnesses,  or  send  for  them  and  hear  for  yourself 
whether  they  can  and  will  really  say  what  your  client  tells 

1  Warren,  Duties  of  Attorne}'s,  Am.  ed.,  238  et  seq.  ^  Ibid. 


A  CASE  OFFERED.  49 

you  tliey  can  and  will ;  and  if  you  entertain  serious  doubts, 
take  an  opinion  on  a  case,  candidly  drawn,  not  slurring  over 
or  concealing  features  whicii  you  do  not  like ;  and  let  all 
this  be  done  before  the  writ  issues.  Generally  speaking, 
you  ought  to  have  under  your  eye  the  expected  proof  of 
the  witnesses  before  you  issue  your  writ,  or  declare  or 
deliver  your  pleas,  and  this  in  almost  as  exact  detail  as 
though  the  period  had  arrived  for  setting  such  matters 
forth  in  your  brief,  or  for  an  opinion  on  evidence."  ^ 

The  concluding  sentence  of  the  last-quoted  passage  is 
specially  to  be  meditated. 

§  C3.  The  American  reader  is  to  recollect  that  Mr.  War- 
ren, in  all  of  the  -foregoing  excerpts,  is  speaking  of  the 
duties  of  attorneys  and  solicitors.  These  classes  only  in 
England  have  direct  communication  with  the  client.  As 
they  ascertain  the  facts  of  cases  when  they  are  offered,  and 
as  the  ordinary  American  lawyer  does  the  same,  these  pas- 
sages should  receive  careful  study  from  our  students  and 
young  licentiates.  It  is  to  be  further  remembered  that  a 
practitioner  here,  after  learning  the  facts,  also  performs  the 
part  of  counsel  to  whom  the  statement  of  the  case  is  sub- 
mitted by  the  English  attorney  or  solicitor,  that  is,  he  rec- 
ommends whether  the  client  will  surrender,  or  seek  the 
judgment  of  the  court. 

§  64.  It  is  implied  in  the  foregoing,  that  the  probable 
case  of  the  other  side  is  to  be  conjectured  as  precisely  as 
may  be,  and  we  but  mention  the  matter  in  order  to  give  it 
emphasis  here.     It  will  be  fully  treated  further  on.     We 

^  Warren,  Duties  of  Attorneys,  Am.  ed.,  168.  Compare  what  is  said  in 
the  American  edition  of  Adventures  of  an  Attorney  in  Search  of  Practice, 
252-254,  as  to  the  over-colored  statements  of  an  "angry  client."  The  work 
is  by  Sir  George  Stephen,  although  in  the  edition  mentioned  its  authorship 
is  ascribed  to  Mr.  Warren. 

4 


60  CONDUCT   OUT   OF   COURT. 

only  say  now  that  tlie  lawyer  whom  we  have  in  mind  in 
this  chapter  ought  also  to  learn  as  many  of  the  secrets  of 
the  adversary  as  he  can  at  this  particular  point  of  time, 
before  he  gives  decisive  advice. 

Here  is  another  similarity  of  our  subject  to  warfare. 
No  campaign  is  resolved  upon  by  a  good  general  until  the 
resources,  dispositions,  and  designs  of  the  enemy  arc  ascer- 
tained as  accurately  as  possible.  Careful  inferences  from  un- 
disputed facts  are  made,  scouts  and  spies  arc  kept  busy,  and 
all  available  information  is  gathered  fi'om  every  source. 

§  65.  Concluding  this  part  of  the  chapter,  we  refer  the 
reader,  in  a  citation  given  below,  to  a  passage  from  Judge 
Cooley's  Suggestions  for  the  Study  of  the  Law.^  It  is 
supposed  that  an  abstract  of  title  is  brought  to  a  lawyer 
for  his  opinion.  Nothing  can  appear  plainer  and  easier  at 
first  sight  than  this  abstract,  which  is  given.  But  the 
great  lawyer  consumes  many  pages  in  a  most  elaborate  in- 
vestigation, every  part  of  which  is  seen  to  be  indispensable, 
before  all  doubts  as  to  the  title  can  be  cleared  up  and  it 
can  be  settled  with  certainty  to  be  good  or  bad.  The  edi- 
tion is  so  common  that  we  need  not  even  abridge  the  pas- 
sage. If  it  be  supposed  that  litigation  as  to  the  title  there 
in  question  is  contemplated,  it  becomes  an  example  fully 
illustrating  the  painstaking  circumspection  with  w^hich  the 
lawyer  must  search  after  the  facts  and  determine  their 
force  and  effect  before  he  can  be  sure  that  he  is  competent 
to  counsel  the  client. 

§  66.  The  day  of  final  advice  is  not  to  be  procrastinated. 
The  thorough  examination  necessary  should  be  made 
promptly.  A  lawyer  in  good  practice  is  one  of  the  busiest 
of  men,  and  he  should  resolvedly  correct  any  propensity 

'  Prefixed  to  his  edition  of  Bl.  Comm.,  pp.  xvii.-xxi.,  note  u. 


A   CASE   OFFERED.  61 

to  sloth.  lie  will  often  be  confronted  with  emergencies 
rcqniring  decisive  action  at  once,  and  while  he  shonld 
never  be  in  a  flurry,  he  should  habituate  himself  to  rapid 
and  earnest  work. 

Suppose  that  the  mail  is  laid  on  your  table.  There  are 
a  dozen  letters.  Forget  everything  else  ;  break  open  a 
letter,  —  a  business  letter  is  usually  short ;  concentrate 
your  attention  upon  its  contents,  and  in  a  few  seconds 
you  have  read  it  and  decided  the  fit  reply.  Then  answer 
at  once.  Go  through  the  rest  of  the  batch  in  like  manner, 
never  permitting  your  mind  to  wander,  and  writing  your 
answer  as  soon  as  you  have  decided  what  it  is  to  be,  and 
often  in  a  half-hour  the  letters  are  all  disposed  of,  and 
the  answers  are  more  neatly  and  carefully  done  than  if  you 
had  wasted  a  whole  morning  over  them. 

§  67.  This  is  to  illustrate  the  despatch  which  the  law- 
yer must  use.  The  constant  cry  to  him  from  many  urgent 
clients  is,  "  What  will  you  do  ?  What  must  I  do  ?  "  If 
he  had  his  whole  life  for  the  study  of  one  case,  he  might 
as  long  defer  his  advice  as  Lord  Eldon  did  his  decisions. 
But  the  press  of  business,  the  disadvantage  of  losing  a  term 
of  the  court,  the  uncertainty  of  the  lives  of  witnesses,  par- 
ties, and  their  helping  friends,  and  the  interest  and  urgency 
of  clients,  will  not  let  him  rest.  In  a  moment,  as  it  were, 
he  is  to  resolve  upon  bringing  the  meditated  suit  or  making 
the  defence  proposed,  or  counselling  against  them ;  and  as 
he  is  driven  speedily  to  determine  such  important  ques- 
tions, he  should  have  facility  in  mastering  the  information 
which  must  be  had  beforehand. 

§  68.  Another  important  point  is  now  to  be  treated. 
Supposing  that  the  details  of  the  client's  case  have  been 
mastered,  and  the  case  of  the  adversary  has  been  conjee- 


52  CONDUCT   OUT  OF   COURT. 

turcd  as  well  as  may  be,  what  is  the  next  thing  for  the 
lawyer  consulted  to  do  ? 

He  is  to  consider  these  details  in  order,  in  the  first  place, 
to  ascertain  what  is  the  probable  truth  of  the  facts.  He 
may  have  to  correct  the  prima  facie  import  of  his  testi- 
mony from  the  nature  and  character  of  the  things  testified 
to,  or  the  commonly  accepted  laws  of  probability  ;  and  he 
may  have  to  reconcile  conflicts,  or,  in  case  that  cannot  be 
done,  to  find  which  side  preponderates,  —  often  a  problem 
requiring  great  insight  and  ripe  judgment  for  its  solution. 
The  operation  of  pertinent  rules  of  law  upon  facts  is  also 
to  be  noticed.  There  are  presumptions,  some  of  them  dis- 
putable and  others  incontrovertible.  A  particular  group 
of  facts  may  be  a  sure  claim  to  some  favor,  while  the  law 
may  stigmatize  another  by  refusing  it  any  remedy.  Thus 
it  appears  that  the  natural  and  logical  truth  of  facts  is  not 
always  their  legal  truth,  and  it  is  the  latter  which  is  the 
sj)ecial  concern  of  the  lawyer. 

§  69.  After  the  facts  are  grouped  and  shaped  under  the 
law,  it  is  in  order  to  determine  what  are  the  points  of  con- 
troversy presented  by  the  parties  at  variance,  and  what 
issues  will  be  probably  raised  in  the  event  of  litigation. 
These  issues  may  be  of  law  and  fact,  or  the  case  may  dis- 
close an  emotional  turning  point ;  and  it  ^vill  suffice  for 
our  purposes  here  to  have  our  reader  recall  what  is  said 
of  these  things  in  the  last  chapter. 

§  70.  We  have  now  arrived  at  the  final  stage  in  the  con- 
sideration of  an  offered  case.  All  the  probable  evidence 
being  anticipated  as  far  as  possible,  and  the  issues  being 
discerned,  what  shall  the  lawyer  now  do  ?  He  is  to  ask 
himself  if  the  chances  of  litigation  are  for  or  against  suc- 
cess.    Has  his  client  cardinal  superiorities?     If  he  can 


A  CASE  OFFERED.  63 

conscientiously  answer  yes  to  these  questions,  he  is  to  ad- 
vise litigation  under  that  remedy  and  in  that  court  which 
seem  to  him  the  most  promising.  If  he  cannot  so  an- 
swer, he  should  decidedly  recommend  his  client  to  avoid 
invoking  a  judgment. 

§  71.  It  is  important  to  say  a  word  here  of  the  plan  of 
conduct,  the  subject  of  a  later  chapter  of  ours.  The  law- 
yer ought  to  have  decided  how  he  will  litigate  before  he 
resolved  to  litigate.  He  ought  to  have  a  theory  of  the 
case.  Brutus  argued  that  ^lilo,  charged  with  killing  Clo- 
dius,  was  to  be  applauded  for  killing  a  pernicious  citizen, 
while  Cicero  maintained  that  Clodius  had  been  justifiably 
killed  by  Milo  as  a  lier  in  wait,  but  with  no  deliberate  de- 
sign to  kill  on  Milo's  part.  Cicero  or  Brutus  was  right 
according  to  the  evidence.  Or  both  theories  might  have 
been  presented  under  the  usual  dilemma  of  contradictory 
defences,  when  to  make  good  either  one  woidd  result  in 
an  acquittal.  The  theory,  whether  of  offence  or  defence, 
can  only  be  rightly  chosen  after  all  the  particulars  are 
understood.  The  true  theory  is  the  sine  qua  non  of  in- 
telligent advice,  preparation,  and  subsequent  management 
of  the  case,  and  the  la\A7er  should  have  settled  it  at  least 
provisionally  before  he  decided  for  his  client  to  attack  or 
defend. 

§  72.  The  lawyer  can  neither  predict  nor  assure  the 
event ;  he  can  at  best  but  expect  and  hope.  He  is  to  be 
governed  by  probabilities,  not  certainties.  So  the  general 
is  justified  or  not,  in  action  involving  the  lives  of  his  sol- 
diers and  the  safety  of  his  country,  by  the  fact  that  the 
probabilities  favored  him  or  were  adverse  when  he  decided 
and  commenced  his  advance  or  defence. 

§  73.   The  lavvyer  should  carry  his  client  to  the  courts 


54  CONDUCT   OUT   OF   COURT. 

only  wlien  he  feels  reasonably  sure  that  he  has  one  or  more 
of  the  legal,  evidential,  and  emotional  advantages  explained 
above,  and  wliich  we  will  further  illustrate  here.  You 
may  safely  advise  a  defence  against  a  criminal  charge  upon 
a  measure  of  evidence  that  would  not  be  sufficient  in  a 
civil  case,  as  the  Commonwealth  and  government  are  held 
to  stricter  proof  tiian  a  plaintiff.  Or  you  may  find  that 
you  have  to  encounter  an  a'ccomplice,  whom  the  law  re- 
quires to  be  corroborated  before  there  can  be  a  conviction 
upon  his  testimony,  and  you  can  by  adroit  preparation 
overwhelm  the  corroboration,  which  was  fully  disclosed 
in  the  examination  before  the  magistrate.  These  two  in- 
stances are  from  the  criminal  law.  Or  you  may  be  dealing 
with  an  issue  turning  upon  a  particular  to  which  there  are 
many  witnesses  divided  by  bias  and  interest,  and  you  can 
effect  a  preponderance  by  calling  the  larger  number,  by 
impeaching  some  of  the  adverse,  and  demonstrating  that 
all  of  them  are  opposed  by  palpable  probabilities.  Or 
again,  your  adversary  may  found  his  attack  or  resistance 
upon  an  assumption  of  the  law  which  you  can  show  to  be 
v/rong.  And  lastly,  your  side  may  be  of  invincible  popu- 
larity with  court  or  jury. 

§  74.  We  have  thus  illustrated  advantages  which  are 
ordinarily  decisive  for  the  party  possessing  them.  And  the 
caution  must  be  repeated,  that  they  can  only  be  believed, 
not  known,  to  exist.  The  coolest-headed  man  may  make 
mistakes,  and  often  decide  that  he  has  a  superiority  where 
on  the  trial  he  will  be  shown  the  weaker.  But  when  he 
thinks  with  good  reason  that  he  has  a  superiority  he  will 
do  right  to  advise  acting  as  it  suggests.  We  sum  up  by 
saying  that  a  lawyer  —  to  use  a  colloquial  phrase  —  should 
take  a  case  submitted  to  him  when,  after  the  examination 


A  CASE  OFFERED.  55 

and  consideration  described  in  this  chapter,  he  has  prob- 
able cause  for  believing  that  he  has  for  his  client  superior 
chances  to  those  of  the  adversary,  either  on  the  law  or  tiie 
evidence,  or  on  both. 

§  75.  The  character  of  the  good  lawyer  will  be  more 
fully  discussed  hereafter,  but  it  must  be  said  now  that  he 
should  be  neither  a  timid,  despondent,  nor  an  over  san- 
guine man.  Napoleon's  maxim  as  to  the  general  can  be 
applied  to  the  lawyer :  "  The  first  qualification  of  a  gen- 
eral-in-chief  is  a  cool  head,  —  that  is,  a  head  which 
receives  just  impressions  and  estimates  things  and  objects 
at  their  real  value.  He  must  not  allow  himself  to  be 
elated  by^  good  news  or  depressed  by  bad.  .  .  .  Some 
men  are  so  physically  and  morally  constituted  as  to  see 
everything  through  a  highly  colored  medium.  They  raise 
up  a  picture  in  the  mind,  on  every  slight  occasion,  and 
give  to  every  trivial  occurrence  a  dramatic  interest." 

The  maxim  further  asserts  that  such  men  are  not  fitted 
for  the  command  of  armies.  It  could  be  said  with  truth 
that  they  w^ould  not  be  good  scouts,  nor  could  they  make 
a  true  reconnoissance  nor  rightly  report  the  progress  of  a 
battle,  nor  do  well  any  other  act,  whether  important  or 
trivial,  which  demands  coolness  and  a  well-balanced  judg- 
ment. ,  And  the  important  point  for  us  is  that  such  men 
cannot  be  good  attorneys,  solicitors,  and  counsel. 

§  70.  We  have  spoken  of  men  of  deficient  parts.  There 
is  a  common  fault  of  born  lawyers  now  to  be  noticed.  It 
is  often  said  of  some  bright  and  inventive  advocate,  that 
he  is  never  dangerous  until  he  has  lost  his  case.  The  com- 
mendation generally  means  that  in  losing  he  has  learned 
how  to  win  the  case  afterwards.  If  before  he  loses  he 
has  paid  tlie  fullest  attention  necessary  to  everything,  and 


5G  CONDUCT  OUT  OF   COURT. 

he  discovers  in  the  trial  resources  whicli  lie  could  not  have 
discovered  otherwise,  and  it  is  meant  that  lie  is  thus  dan- 
gerous, then  the  commendation  would  be  just.  And  if  by 
careful  study  and  prudent  acceptance  of  the  case  when  it 
is  offered,  he  generally  wins  at  the  first  trial,  all  would 
agree  that  he  is  indeed  dangerous.  Many  lawyers  permit 
their  case  to  float  at  will,  and  never  gain  any  definite 
knowledge  of  it  until  an  encounter  in  court  coerces  them 
to  a  study  which  should  have  been  made  when  it  was 
brought  to  them.  This  encounter  often  demonstrates  that 
these  careless  counsel  should  have  then  advised  an  aban- 
donment of  the  case. 

§  11.  Other  things  being  equal,  he  is  the  most  danger- 
ous adversary  who  learns  when  the  client  first  comes  every- 
thing possible  concerning  the  case,  and  who  declines  to 
take,  or  takes,  prepares,  and  tries  it,  according  to  that 
which  he  has  so  learned.  Says  his  biographer :  "  Burr 
began  practice  upon  the  principle  of  never  undertaking  a 
cause  ^vhich  he  did  not  feel  sure  of  gaining.  And  I  am 
assured  by  another  venerable  lawyer  of  this  city,  who  was 
frequently  engaged  with  Burr,  that  he  never  in  his  life  lost 
a  cause  which  he  personally  conducted."  The  biographer 
is  right  in  ranking  his  subject,  as  he  conceives  him,  below 
the  first  class  of  lawyers ;  but  the  qualities  of  Burr,  as  set 
forth  by  Mr.  Parton,  which  should  be  dwelt  upon  and  con- 
templated, are  the  coolness  with  which  he  looked  into  the 
facts  of  his  cases,  the  indefatigable  diligence  of  his  study 
of  these  facts,  and  his  resolve  not  to  enlist  in  a  desperate 
cause.  Such  qualities  in  one  far  inferior  in  parts  to  Burr 
would  still  make  him  an  eminent  lawyer.  The  danger  of 
ha\ing  him  as  an  adversary  would  be  that  he  would  hardly 
ever  fail  to  win. 


A  CASE  OFFERED.  57 

§  78.  I  can  never  forget  a  famous  lawyer  of  my  old 
circuit  who  was  known  all  over  the  country  when  I  came 
to  the  bar.  He  hud  an  air  of  winning  because  he  could 
not  help  it.  So  great  had  become  his  reputation  as  a  sound 
lawyer,  that  when  he  deliberately  took  a  position  there 
sprang  up  with  the  court  and  profession,  and  often  with 
his  adversaries,  the  conviction  that  he  was  right  and  invin- 
cible. He  was  as  strong  on  the  facts  as  on  the  law.  At 
nisi  prius  his  management  was  an  adaptive  flexibility, 
parrying  every  avoidable  attack,  achieving  every  inch  of 
vantage  ground,  and  preparing  for  the  final  and  \ictorious 
assault.  In  the  court  of  errors  he  would  show  that  there 
had  been  no  material  fault  on  his  side.  His  verdict  stood, 
and  it  was  usually  seen  to  be  right.  He  was  constantly  in 
my  thoughts.  INIy  first  note  was  that  he  had  always  a 
plan  of  conduct  fully  premeditated,  which  he  kept  fast  hold 
of  amid  all  the  wavings  to  and  fro  of  the  trial.  Then  I 
observed  that  occasionally  some  unexpected  turn  would 
develop  the  case  to  be  totally  diffbrent  from  what  his  plead- 
ings, his  opening,  and  his  examination  of  witnesses  had 
shown  to  be  his  understanding  of  it,  when  he  would  delib- 
erate for  a  moment  and  with  composure.  If  he  decided  to 
go  on,  he  moved  with  confidence  ;  but  if  he  saw  no  road 
to  success,  he  surrendered.  After  a  while  it  struck  me 
that  he  had,  by  reason  of  his  activity  in  politics  and  his 
great  business,  but  little  time  for  preparation.  I  found 
that  he  joined  with  an  unusually  accurate  and  rapid  insight 
into  the  law  controlling  facts  a  still  more  wonderful  faculty 
for  discovering  at  once  the  whole  truth  of  the  case.  He 
seemed  to  guess  unerringly  at  everything  on  both  sides. 
He  took  no  bad  cases.  His  independence  was  complete. 
No   importunities,  not   even   those   of  charming  women, 


58  CONDUCT  OUT   OF   COURT. 

could  enlist  his  advocacy  wlicn  lie  bad  considered  a  cause 
and  found  it  unnuiiutainablo.  He  somewhat  vaunted 
his  firmness  in  turning  oft'  bad  cases,  lie  had  not  the 
idle  ambition  of  the  vain  advocate  who  boasts  that  he 
can  always  w4n.  But  he  did  feel,  and  witli  reason,  that 
he  could  not  lose  a  good  case ;  and  he  never  seemed  to 
desire  winning  a  bad  one.  His  industry  was  as  marvel- 
lous as  the  rapidity  of  his  work.  Its  only  pause  was  the 
completion  of  the  task.  He  used  to  say  that  ninety-five 
per  cent  of  average  success  at  the  bar  was  mere  drudgery 
done  in  time.  1  would  improve  upon  his  saying,  and  urge 
that  the  most  considerable  part  of  success  in  the  law  is  the 
drudgery  of  practice  done  faithfully  and  intelligently. 

But  his  example  is  given  here  for  the  special  purpose 
of  enforcing  the  importance  of  well  understanding  a 
case  before  taking  it.  He  once  told  me  that  his  vic- 
torious career  was  mainly  due  to  the  judicious  selection 
of  his  cases. 

§  79.  In  the  foregoing  sections  of  this  chapter,  we  have 
developed  the  essential  parts  of  its  subject.  We  will  now 
add  a  few  desultory  reflections  which  we  think  worthy  of 
attention  in  this  place. 

§  80.  We  commence  by  saying  that  while  insisting  as 
much  as  we  do  upon  the  closest  attention  possible  to  all 
the  details  of  a  case  presented  before  advising  the  client, 
we  do  not  wish  to  be  understood  as  recommending  a 
timid,  doubting,  and  over-cautious  spirit.  We  cojiy  from 
Lord  Campbell's  Life  of  Hale  a  quoted  passage  which  we 
approve : — 

"  He  [Hale]  began  with  the  specious  but  unpractica- 
ble  rule  of  never  pleading  except  on  the  right  side,  which 
would  make  the  counsel  to  decide  without  knowing  either 


A  CASE   OFFERED.  59 

facts  or  law,  and  would  put  an  end  to  tlic  administration 
of  justice.  If  lie  saw  a  cause  was  unjust,  lie  for  a  great 
while  would  not  meddle  further  in  it  but  to  give  his  ad- 
vice that  it  was  so.  If  the  parties  after  that  would  go  on, 
they  were  to  seek  another  counsellor,  for  he  would  assist 
none  in  acts  of  injustice.  Yet  afterwards  he  abated  much 
of  the  scrupulosity  he  had  about  causes  that  appeared  at 
first  view  unjust. ' 

§  81.  The  lawyer  must  recollect  that  the  more  conscien- 
tious he  has  been  in  his  past  practice,  the  n^ore  will  his 
clients  be  disposed  to  acquiesce  in  his  decisions.  There 
are  many  of  our  profession  in  America  whose  word  is  law 
to  almost  nine  tenths  of  their  following  of  clients.  While 
we  are  commendably  anxious  to  avoid  encouraging  foolish 
litigation,  we  should  also  avoid  suffocating  a  good  case  by 
a  premature  opinion.  We  are  neither  judges  nor  arbitra- 
tors. We  can  only  decline  a  retainer  when  it  clearly  ap- 
pears that  the  client  has  no  case.  We  should  be  as  sure 
of  his  having  no  case  as  the  law  requires  the  jury  to  be  of 
the  guilt  of  the  prisoner  before  they  convict  him.  It  is  far 
more  difficult  for  the  lawyer  to  reach  the  needed  degree 
of  certainty  than  tlie  jury,  for  he  hears  only  one  side  and 
often  he  cannot  accurately  test  that.  If  the  case  offered  is 
2^1' 'una  facie  maintainable,  we  are  not  to  turn  it  off.  If  it 
is  doubtful,  we  must  consider  of  it  until  we  come  to  a  defi- 
nite conclusion.  Lord  Eldon,  the  hesitating  and  doubting 
Chancellor,  felicitated  himself  that  his  reprehended  dilatori- 
ness  and  looking  over  of  the  original  instruments  had  saved 
many  a  landed  estate  to  the  true  owner.  We  should  per- 
mit neither  our  needed  promptness  in  deciding,  nor  our 
firmness  for  what  we  deem  the  right,  to  deprive  a  client 
who  trusts  us  without  limit  of  some  right  which  better 


60  CONDUCT  OUT  OF  COURT. 

attention  might  have  ascertained  before  we  influenced 
him  to  decline  controversy.  And  we  must  say,  as  we 
have  ah'cady  said,  that  this  full  knowledge  comes  rather 
from  industry  and  an  energetic  addressing  of  all  the  fac- 
ulties to  the  case  at  the  first,  than  from  long  delay  and 
lazy  contemplation. 

§  82.  We  will  now  briefly  consider  the  often  urged  right 
of  a  party  to  force  any  case  upon  a  lawyer,  and  what  moral 
principles  should  guide  the  latter  in  his  conduct  after  em- 
ployment. This  is  a  branch  of  what  is  frequently  called 
legal  or  professional  ethics.  It  has  received  much  good  dis- 
cussion,^ but  some  confusion  yet  prevailing  may  be  removed 
by  bringing  forward  a  few  distinctions  which  have  been  too 
much  overlooked.  We  set  out  with  persons  charged  with 
crime.  As  it  is  the  rule  that  the  evidence  must  prove 
guilt  beyond  a  reasonable  doubt  and  that  a  conviction  is 
to  be  had  in  due  conformity  to  far  more  strict  requirements 
than  obtain  on  the  civil  side,  the  reflecting  people  of  the 
world  are  almost  at  one  in  embrace  of  the  proposition  that 
such  persons  can  command  for  their  defence  the  services  of 
those  members  of  the  bar  who  engage  in  criminal  practice. 
The  prisoner  who  is  too  poor  to  pay  a  fee  has  counsel  as- 
signed him  by  the  court.  The  professional  effort  which  can 
be  exacted  is,  that  the  prosecution  be  held  to  due  process 
of  law.  If  a  flaw  can  be  detected  in  the  proceedings  or 
m  the  evidence,  if  a  doubt,  not  of  guilt,  but  of  the  proper 
proof  of  the  same,  can  be  fairly  raised,  the  counsel  is  bound 
to  press  these  advantages  with  all  achievable  effect,  and 
cause  if  possible  the  acquittal  of  a  man  whom  he  may 

1  See  the  views  of  David  Paul  Brown,  2  Forum,  25  et  scq.  But  the  hest 
consideration  of  the  subject  known  to  us  is  Mr.  "Warren's  Law  Studies,  3d 
ed.,  374-444  q,  of  which  note  what  we  say,  American  I;aw  Studies,  §  50. 


A  CASE  OFFERED.  61 

know  to  be  in  fact  guilty  as  charged.  If  he  halt  or  recoil 
in  this  duty,  he  may  receive  the  plaudits  of  a  few  shallow 
sentimentalists,  but  he  draws  upon  himself  execration  of 
his  treachery  and  desertion  from  all  the  better  part  of  the 
profession. 

§  83.  But  now  let  us  look  at  another  sort  of  cases. 
A  practitioner,  known  as  "  the  divorce  shyster,"  contracts 
with  a  party  who  seeks  without  legal  reason  to  dissolve 
his  marriage.  A  flying  visit  is  made  to  the  locality  of  a 
distant  State  where  it  is  purposed  to  bring  suit,  which  is 
treated  as  a  change  of  domicile,  while  the  client  is  back 
pui*suing  his  business  at  home  ;  then  sham  service  of  the 
defendant  is  effected  and  returned  as  legal,  though  she  has 
never  heard  of  it ;  and  at  the  last  there  is  a  judgment  re- 
leasing the  plaintiff  from  the  bonds  of  matrimony.  Every 
step  was  taken,  not  simply  with  the  fiill  knowledge,  but  by 
the  adNice  and  active  procurement  of  his  counsel.  Surely 
it  is  palpable  that  such  a  case  should  be  declined  when 
offered,  and,  further,  what  is  done  by  the  lawyer  after 
accepting  the  case  merits  disbarment  and  a  long  term  of 
hard  labor. 

§  84.  To  return  for  a  moment  to  our  first  subject  of 
illustration.  There  is  a  wide-spread  opinion  that  many 
criminal  practitioners  abet  the  procurement  of  false  evi- 
dence, and  become  adepts  in  obtaining  for  their  side  all 
the  benefits  of  embracery  without  suffering  its  pains  and 
penalties  ;  and  these  acts  are  condemned  as  severely  within 
the  profession  as  by  the  most  censorious  without.  This 
introduces  an  important  distinction,  which  is,  that,  while 
there  may  be  a  case  the  offer  of  which  a  la\\7^cr  is  not 
warranted  in  refusing,  yet  he  cannot  be  coerced  to  conduct 
it  in  any  other  way  than  is  legitimate  and  honorable. 


62  CONDUCT   OUT   OF   COURT. 

§  85.  We  have  mentioned  the  divuree  eaisc  wliich  no 
reputable  lawyer  would  be  asked  to  take.  There  are 
others  whieh,  tliough  not  obviously  as  bad,  yet  ought  to 
be  scrutinized  to  see  if  they  are  honest.  Bankruptcies  and 
failures  in  which  the  debtor  keeps  his  estate  and  gets  rid 
of  his  liabilities  ;  claims  to  property  against  creditors  of 
the  late  owner  by  his  near  relatives  ;  —  these  fall  far  short 
of  complete  enumeration  of  the  instances  in  which  a  party 
is  consciously  trying  to  cheat  and  rob.  If  his  lawyer  is 
aware  of  his  motive  and  of  facts  showing  the  prosecution 
of  the  case  to  be  corrupt,  and  he  still  helps  the  client  on, 
he  becomes  as  bad  as  the  client,  or  even  worse,  A  stranger 
came  into  the  chambers  of  a  leading  lawyer,  told  his  case, 
and  tendered  a  heavy  retainer  to  have  suit  made  for  the 
projierty  he  claimed.  The  IaAV}'er,  who  was  unwontedly 
perspicacious,  suspected  from  the  narrative  that  the  claim- 
ant had  received  virtual  compensation.  So  he  questioned 
hard,  and  drew  out  an  admission  of  the  fact.  The  com- 
pensation —  it  is  unnecessary  to  explain  here  —  had  been 
informal,  and  the  claimant  still  held  the  naked  title. 
"  Why  should  you  sue  for  property  for  which  you  have 
been  paid  ?  "  was  asked.  "  0,"  was  the  reply,  "  I  choose 
to  insist  upon  all  my  legal  rights."  The  lawyer  broke  into 
a  rage,  and  he  ordered  his  would  be  client  off,  with  the 
remark  that  he  must  find  somebody  else  to  aid  him  in 

his  d d  villany.     This  exemplifies  the  promptness  with 

which  you  should  always  fling  away  a  knavish  case. 

§  86.  So  much  for  causes  and  practices  that  morality 
commands  you  to  avoid.  Next  comes  the  case  which  is 
not  dishonest,  but  which  you  see  is  hopeless.  What  arc 
you  to  do  here  ?  Suppose  that  it  is  a  declaration  or  plea 
palpably  open  to  a  demurrer  sustained  by  the  phiin  letter 


A  CASE  OFFERED.  63 

of  the  statute  or  the  plainer  doctrine  of  the  decisions.  Of 
course  you  ought  to  be  round  with  tlie  client,  telling  him 
emphatically  that  it  will  be  foolish  for  him  to  go  on.  What 
if  he  still  insist  ?  as  I  have  known  wrong-headed  people  to 
do.  I  am  clear  that  you  should  decline  to  make  a  fool  of 
yourself. 

§  87.  But  this  does  not  apply  to  any  but  cases  surely 
desperate.  David  Paul  Brown  tells  the  following :  "  A 
young  member  of  the  bar,  who  has  since  reached  some 
eminence,  when  applied  to  in  a  first  case,  which  was 
somewhat  complicated  and  doubtful,  waited  on  the  late 
]Mr.  Rawle,  stated  the  case,  and  remarked  at  the  same  time 
that  he  thought  it  a  bad  one.  '  You  are,'  said  INIr.  Rawle, 
*  a  presumptuous  young  man,  thus  to  venture  in  the  outset 
to  determine  what  a  court  and  jury  only  can  decide  after 
hearing  all  the  testimony.'  "  And  INlr,  Brown  quotes 
approvingly  the  well-known  suggestion  of  Judge  Shars- 
wood,  that  cases  are  to  be  decided  according  to  the  fixed 
and  unbending  rules  of  law  and  not  according  to  any 
mere  notions  of  justice  held  by  courts  and  juries. 

§  88.  Legal  rights,  not  moral  rights,  are  the  due  of 
every  client  from  the  courts,  and  of  course  from  the  law- 
yers, who  are  but  their  officers  and  cannot  put  themselves 
above  the  judges.  The  most  just  debt  will  be  barred  by 
the  statute  of  limitations.  Many  an  instrument  for  which 
money  has  been  paid,  or  for  the  setting  up  of  which  there 
exist  other  high  claims  of  honesty,  is  avoided  every  day 
because  of  the  lack  of  some  formality.  The  client  can 
exact  of  yt)u  the  benefit  to  him  of  all  such  points.  But 
you  are  not  to  help  him  by  fraud,  nor  arc  you,  by  con- 
cealing or  feigning  facts,  to  make  out  such  a  case  as 
will  bring  him  a  fi\lse  verdict. 


64  CONDUCT  OUT   OF  COURT. 

To  sum  up,  if  the  facts  give  him  or  seem  to  give  him 
prima  facie  a  case  recognized  by  the  law,  whatever  mo- 
rality may  say  of  it,  you  cannot  rightfully  disobey  the  order 
of  the  client  to  do  your  utmost  to  win  it  for  him. 

§  89.  Sometimes  the  application  of  these  principles  will 
not  be  clear.  Now  and  then  you  will  have  offers  which 
must  be  decided  rather  by  your  feelings  than  your  under- 
standing, where  the  question  is  akin  to  those  others  of 
sound  discretion  and  enlightened  conscience,  such  as  the 
requisite  reasonable  doubt  in  criminal  cases,  or  the  right 
amount  of  punitive  damages  in  some  kinds  of  toi't,  or 
whether  a  judge  shall  grant  a  new  trial  because  of  the 
alleged  contrariety  of  the  verdict  to  the  weight  of  the  evi- 
dence when  it  has  some  manifest  support. 

We  may  note  that  if  you  show  unalterable  convictions 
against  the  case,  or  the  particular  way  of  management  on 
which  the  party  has  set  his  heart,  he  will  hardly  ever 
insist  upon  employing  you.  Choate  did  not  actually  de- 
cline to  defend  Professor  Webster,  but  he  dissented  so 
vigorously  from  the  proposal  of  the  defendant  and  his 
counsel  to  make  the  main  struggle  upon  the  identity  of 
the  remains  found  in  the  furnace  with  those  of  Dr.  Park- 
man,  that,  to  use  his  own  phrase,  they  did  not  want  him.^ 

§  90.  I  advise  that,  whenever  you  decline  a  case  because 
you  deem  it  unmaintainable,  you  disclose  your  reasons  fully 
to  the  client  and  advise  him,  should  you  be  in  any  doubt, 
to  sound  other  counsel.  You  can  remind  him  that  prob- 
ably you  have  unwittingly  become  prejudiced  against  his 
case  and  you  are  therefore  a  bad  lawyer  for  him.  Keep  a 
record  of  the  cases  you  discourage  after  full  investigation, 
and  of  their  final  results,  and  you  will  find  that  in  the  long 

1  Neilson,  Memories,  18. 


A  CASE   OFFERED.  65 

run  you  take  ten  cases  which  you  should  not  to  one  that 
you  turn  off  mistakenly. 

§  91.  There  are  many  laM^ers  who  are  too  much  in 
court  to  originate  any  business.  They  are  generally  re- 
tained after  the  issue  has  been  joined.  The  responsibility 
of  bringing  the  action  or  of  making  a  defence  has  been 
previously  undertaken  by  a  junior.  The  senior  should,  at 
his  earliest  opportunity,  pry  carefully  into  the  case  in  order 
to  learn  if  it  can  be  upheld.  If  it  cannot  be,  he  should 
advise  a  settlement  or  abandonment.  Often,  however, 
the  ability  of  the  junior  is  a  sufficient  guaranty  of  a  good 
case. 

§  92.  We  will  now  notice  some  cases  which  give  much 
trouble  to  the  profession.  Wlien  they  are  offered,  we  see 
that  they  are  supported  by  the  law,  the  evidence,  and  right, 
and  yet  we  know  that  they  cannot  be  gained  in  the  courts, 
where  witnesses,  jurors,  and  the  judge  will  irresistibly  band 
against  us  whenever  we  dare  to  risk  a  trial.  The  client 
may  be  a  corporation  which  the  whole  community  think  is 
too  rich  and  powerful  to  have  anything  more  even  of  its 
own.  He  may  belong  to  a  class  of  society  almost  pro- 
scribed by  that  class  which  furnishes  jurors,  as  in  some 
parts  of  the  South  for  several  years  after  the  late  ciWl  war 
it  was  folly  for  a  native  white  to  submit  his  case  to  a 
negro  jury,  and  in  other  parts  a  negro  could  not  get  justice 
from  a  white  jury.  In  certain  places  workingmen  may  be 
in  the  ascendant,  and  deny  right  verdicts  to  merchants  and 
professional  men  contending  with  one  of  their  class.  It 
will  now  and  then  be  sheer  rashness  to  carry  the  just 
cause  of  the  client  into  court. 

§  93.  Here  the  lawyer  is  not  to  be  blamed  for  being 
unable  to  cure  society  of  its  e\41s.     He  must  look  about 

5 


m  CONDUCT   OUT  OF   COURT. 

him  and  do  the  best  possible.  Often  a  high-toned  bar  is 
of  great  avail  against  these  inexorable  prejudices  and  a 
composition  approximating  the  right  can  be  secured  by 
its  intervention.  Sometimes  a  reference  or  arbitration 
can  be  had,  and  thus  the  client  acquire  something,  far 
short  of  his  due,  it  may  be,  yet  as  far  exceeding  what  he 
could  obtain  from  the  courts.  If  you  can  see  no  help  of 
this  kind  for  him,  you  should  advise  him  against  litigation. 
But  you  cannot  refuse  him  your  best  effort  if  he  decides 
against  your  advice.  Your  conscience  dictates  that  you 
should  do  all  you  can  to  set  up  down-fallen  right,  and  it 
almost  reproaches  you  because  you  believe  your  fellow 
creatures  cannot  be  influenced  to  help  you. 

§  94.  We  have  had  an  instructive  experience  upon  this 
subject.  When  the  courts  of  Middle  Georgia  in  which  we 
practised  were  reopened  after  the  late  war,  it  was  useless 
to  submit  the  case  of  a  negro  to  a  jury  of  the  Avhitcs.  We 
witnessed  such  an  unbroken  series  of  adverse  verdicts 
against  colored  litigants  that,  as  Jefferson  said  of  slavery, 
we  trembled  for  our  people  when  we  thought  that  God  is 
just  and  that  his  justice  cannot  sleep  forever.  But  the 
profession  stood  by  their  clients  faithfully.  Even  the 
counsel  assigned  by  the  court  to  defend  the  negro  pauper 
did  his  duty  fearlessly  and  went  down  bravely  under  the 
unrighteous  conviction.  The  leading  members  of  the  bar 
spoke  out  unanimously  on  all  fit  occasions  advising  a  better 
course.  At  last  this  persistence  began  to  tell.  The  tide 
turned  perceptibly  in  18/0,  and  after  a  while  it  was  no 
wonder  to  see  a  negro  obtain  his  due  from  a  jury  of  his 
former  masters. 

§  95.  In  Avar  the  post  of  danger  is  the  post  of  honor ; 
in  the  practice  of  the  law  the  post  of  unpopularity  is  often 


A  CASE   OFFERED.  67 

the  post  of  lionor.  The  weak,  the  defenceless,  and  tlie 
oppressed  are  clients  that  you  must  stand  by  to  the  death. 
Whether  they  are  high  or  low,  rich  or  poor,  —  for  unpopu- 
lar clients  come  from  every  rank  of  society,  —  they  are  a 
sacred  charge.  You  are  to  strive  harder  for  them  than 
for  those  who  can  help  themselves.  If,  after  failing  to  ob- 
tain any  such  amicable  adjustment  as  we  have  mentioned, 
you  must  conscientiously  advise  tliem  to  abandon  their 
rights  because  of  your  conviction  that  the  probable  event 
will  never  repay  the  cost  of  the  controversy,  make  every- 
thing clear  to  them.  If  they  still  insist  upon  their  guar- 
anteed right  of  appeal  to  the  courts,  you  have  no  choice. 
Prepare  and  try  their  cases.  Fear  not  to  be  called  Quix- 
otic. You  work  not  alone  for  them.  The  brave  soldiers 
who  fall  in  the  forlorn  hope  do  not  throw  away  their  lives. 
You  struggle  for  the  most  precious  interests  of  societ^ 
Grudge  not  the  toil  and  defeat,  rewarded  as  it  seems  witli 
only  present  obloquy.  It  is  the  sure  earnest  of  the  ever- 
lasting amelioration  of  our  race  that  men  will  take  fire  and 
imitate  actions  brave  and  good.  Your  example  inspires 
others.  The  better  ones  begin  to  organize.  And  when 
their  organization  is  complete,  no  power  of  injustice  can 
stand  against  them, 

§  96.  We  contend  that  the  principles  which  we  have 
laid  down  should  govern  every  one  to  whom  a  case  is  of- 
fered, whether  he  be  some  hard-working  junior  first  con- 
sulted, or  a  more  eminent  lawyer  retained  after  forensic 
controversy  has  been  commenced.  And  we  here  summa- 
rize the  leading  divisions  of  the  examination  which  we 
have  treated  in  this  chapter :  — 

1.  The  facts  are  to  be  found  out.  All  belonging  docu- 
ments are  to  be  considered  with  a  sharp  eye  to  their  rele- 


08  CONDUCT  OUT  OF  COURT. 

vant  contents,  the  validity  of  their  form  and  execution,  and 
the  means  of  proof.  The  entire  array  of  witnesses  who  can 
possibly  testify  to  important  matters  are  to  be  questioned 
exhaustively,  in  order  fully  to  disclose  both  their  favorable 
and  unfavorable  knowledge.  Those  that  cannot  be  seen 
in  person  must  be  written  to,  or  be  sifted  by  an  efficient 
agent. 

The  expected  proof  of  the  other  party,  whether  docu- 
mentary or  oral,  —  this  is  an  indispensable  part  of  the  facts 
to  be  learned  as  well  as  can  be. 

And  the  whole  body  of  the  evidence,  so  far  as  it  can  be 
collected  now,  is  to  be  weighed  according  to  probabilities 
and  applicable  rules  of  law  and  made  to  tell  its  true 
tale. 

2.  When  a  definite  narrative,  as  it  were,  is  fashioned 
from  the  facts  on  both  sides,  the  test  of  the  law  is  to  be 
applied.  Do  these  facts  constitute  a  claim  to  a  substan- 
tive legal  right,  or  do  they  not?  and  is  there  an  avail- 
able remedy  to  obtain  or  defend  the  right  ? 

3.  When  the  course  we  recommend  has  been  rightly 
followed,  the  experienced  counsel  can  predict  the  result  of 
litigating  the  given  case  with  some  degree  of  confidence. 
If  he  keep  the  mean  between  an  over-sanguine  expectation 
on  the  one  hand  and  a  seeking  for  more  than  a  strong 
probability  on  the  other,  and  he  divines  clearly  that  the 
chances  of  success  overcount  those  of  failure,  he  should 
advise  litigation ;  but  if  the  chances  of  failure  appear  the 
greater,  it  is  his  duty  to  dissuade  the  client  from  appealing 
to  the  courts. 

§  97.  This  summary  is  but  a  condensed  statement  of  the 
more  general  principles.  All  the  minutiae  of  the  proper 
consideration  of  an  offered  case  will  be  learned,  both  in 


A  CASE   OFFERED.  69 

their  separate  importance  and  proper  co-ordination,  when 
the  subject  of  Preparation  is  fully  developed. 

§  98.  But,  says  the  young  lawyer,  How  can  I  ever  find 
out,  at  the  first,  all  about  a  case  as  you  direct  nie  to  do  ? 
and  if  I  do  find  out  all  of  the  facts  and  details,  how  shall 
I  ever  learn  what  to  do  with  them  ?  how  can  I  understand 
what  case  they  make  ? 

He  must  observe  and  imitate  for  a  while.  His  old  pre- 
ceptor will  always  rejoice  to  give  him  instruction.  Some 
young  brother  of  the  bar,  a  little  older  in  the  law,  will  be 
glad  to  play  teacher.  And  our  jurisprudent,  if  he  be  a 
born  gentleman,  will  find  friends  among  lawyers  who  will 
help  him  with  good  counsel  and  prevent  him  from  disgrace- 
ful blunders.  Let  him  attend  trials,  noting  everything 
most  carefully,  and  reflecting  to  see  how  it  was  brought 
about.  Let  him  put  cases  to  his  companions  and  argue 
with  them.  And  especially  let  him  give  some  industrious 
hours  every  day  to  his  exercises  on  the  reports^  ^  After  a 
while  he  will  become  capable  of  analyzing  cases  for  himself 
and  discerning  whether  they  are  maintainable  of  not. 

1  Note  our  American  Law  Studies,  §§  239  et  scq.,  272-2-'"9-  481,  727, 
779. 


70  CONDUCT  OUT   OF   COURT. 


CHAPTER  II. 

PRINCIPLES   OF   PREPARATION.  —  PREPARATION   OF   THE 
EVIDENCE. 

§  99.  In  this  chapter  and  the  two  whicli  succeed,  we 
treat  of  the  preparation  of  the  case  on  the  evidence  and  its 
preparation  on  the  law.  Afterwards  we  notice  the  proper 
plan  of  an  attack  or  defence.  It  is  necessary  to  discuss 
other  matters  belonging  to  our  general  division  of  Prepara- 
tion, most  of  which  head  different  chapters.  We  wish  to 
impress  it  upon  our  student  here,  however,  that  there  is 
actually  no  such  serial  progress.  The  parts  of  a  thing, 
even  when  they  are  coexistent,  must  be  looked  at  sepa- 
rately to  be  understood.  When  the  case  is  presented  there 
is  almost  at  once  some  immature  conception  of  the  cardi- 
nal questions  of  law  and  fact,  and  of  the  proper  plan  of 
conduct,  and  they  are  steadily  developed  into  greater  clear- 
ness and  distinctness.  And  though  the  various  items  of 
preparation  in  their  growth  keep  an  even  pace  with  one 
another,  still  we  must  consider  them  successively  in  order  to 
present  more  intelligibly  the  whole  which  they  constitute. 

§  100.  The  lawyer  deciding  upon  litigation  has  analyzed 
the  case  and  made  choice  of  his  forum  and  remedy.  He 
has  discovered  all  the  material  points  of  controversy  which 
can  be  discovered  at  the  standpoint  of  the  last  chapter, 
and  he  can  commence  making  rational  provision  for  the 


PRINCIPLES   OF   PEEPAKATION.  71 

decisive  encounter.  We  must,  liowever,  emphasize  the 
fact,  that  the  most  careful  consideration  of  a  case  offered 
often  amounts  to  no  more  than  a  bird's-eye  view  of  the 
prominent  particuLars,  many  smaller  ones  being  left  unas- 
certained. And  further  investigation,  the  manojuvres  of 
the  adversary,  sudden  and  surprising  developments  of  many 
kinds,  —  all  these  may  contribute  new  facts  and  points  of 
leading  importance.  Of  course  these  new  facts  and  points 
ought  to  be  studied  as  carefully  as  those  which  the  law- 
yer passed  in  review  before  he  advised  the  action  of  the 
client. 

We  say  this  to  hint  the  Avide  scope  of  our  present  sub- 
ject, and  to  remind  the  student  that  in  many  cases  much 
is  to  be  done  which  cannot  be  foreseen  at  the  first.  And 
we  must  now  proceed  to  discuss  the  different  aims  of  in- 
telligent preparation.  In  the  rest  of  the  chapter  we  shall 
confine  ourselves  to  the  evidence. 

§  101.  The  first  of  the  aims  just  mentioned  is  to  assure 
those  advantages  which  appear  when  the  case  is  taken. 
We  Avill  begin  Avith  the  witnesses.  What  we  are  now 
going  to  advise  is  often  properly  done  while  the  lawyer  is 
considering  the  offered  case,  but  it  is  also  such  a  material 
particular  of  preparation  that  it  must  receive  a  place 
here. 

The  client,  or  another,  tells  you  that  somebody  will  tes- 
tify so  and  so,  and  you  see  that  the  testimony  as  repre- 
sented is  material.  This  witness  should  be  brought  to  you 
without  delay,  and  you  must  make  yourself  or  have  your 
associate  or  clerk  to  make  a  copious  memorandum  of  his 
statements.  You  will  remember  that  Quintilian  gives  simi- 
lar advice.^    The  careful  examination  of  the  witness  will 

1  A7itc,  §  50. 


72  CONDUCT  OUT  OF  COURT. 

be  of  great  profit  to  you  in  more  tliau  one  respect.  In  the 
privacy  and  command  of  time  which  you  have  in  your  con- 
ference you  will  sift  him  thoroughly.  Ilis  freedom  from 
embarrassment  will  be  favorable.  You  can  correct  his  mis- 
takes. Should  he  make  an  erroneous  statement  in  public 
he  will  hardly  take  it  back ;  but  in  your  office  you  can  lead 
him  to  retract  an  untrue  assertion.  Y»u  may  obtain  from 
him  clues  to  other  helping  evidence.  It  is  also  an  advan- 
tage that  you  commit  and  fasten  him  to  his  narrative.  For 
sometimes  a  witness  is  wavering.  When  the  transaction 
is  fresh  he  is  full  of  nothing  but  its  actual  details,  but 
frequently  he  is  disposed  afterwards  to  alter  his  first  report. 
He  may  begin  to  recoil  from  the  effect  of  his  testimony 
uj)on  the  interest  or  feelings  of  the  opposite  party  and  his 
relatives  and  friends,  and  he  is  usually  influenced  by  their 
appeals  and  solicitations.  All  of  us  have  observed  that 
the  testimony  of  good  men  is  shaped  and  colored  by  their 
associates.  You  will  sometimes  find  that  the  others,  while 
testifying  to  the  same  fticts,  repeat  many  particulars  of  the 
first  witness,  although  they  may  have  been  excluded  from 
court  during  his  examination.  This  is  because  they  have 
talked  over  the  matter  together,  each  desiring  to  avoid 
being  contradicted  by  the  rest.  Many  times  the  others 
labor  to  reproduce  the  narrative  of  the  one  of  most  intelli- 
gence and  standing ;  and  he  may  be  strongly  biased,  for  all 
of  his  seeming  frankness.  You  have  a  multitude  of  reasons 
for  being  in  haste  to  make  your  slippery  witness  sure  and 
steadfast.  Get  from  him  the  whole  truth  and  nothing  else, 
and  see  that  he  agrees  to  your  notes.  It  is  often  well  to 
have  him  sign  the  minute  which  you  have  made. 

§  102.   We  subjoin  a  passage  from  Sir  George  Stephen 
which  differs  decidedly  from  the  advice  just  given.     The 


PEEPARATION  OF  THE  EVIDENCE.      73 

reader  is  reminded  that  Mr.  Sharpe  is  an  attorney,  not  a 
counsel. 

"At  one  time  I  made-  it  a  habit  to  take  out  ink  and 
paper  and  reduce  at  once  to  writing  all  that  my  witnesses 
stated,  while  they  were  still  with  me  ;  sometimes  I  do  it 
still ;  and  where  it  can  be  effected  without  exciting  alarm 
it  is  a  useful  practice ;  but  I  was  cured  of  it  as  a  habit  by 
more  than  one  instance  of  the  following  kind  :  — 

"  *  Bless  me,  Mr.  Sharpe,  what  are  you  doing  there  ? ' 

"  '  Only  making  a  minute  of  your  evidence  for  counsel.' 

"  '  Minute  of  my  evidence  !     I  won't  agree  to  that.' 

" '  Why  not  ?  You  can't  think  that  I  can  remember  all 
we  have  been  saying  ? ' 

"  *  I  can't  help  that ;  I  'm  not  going  to  swear  in  black 
and  white  ;  I  have  told  you  the  truth,  but  I  'm  not  going 
to  be  taken  dowii.' 

"  *  Will  you  write  it  yourself? ' 

" '  No  indeed  !  I  may  have  made  a  thousand  mistakes. 
I  '11  do  no  such  thing.' 

" '  Come  now,  be  reasonable  ;  what  is  the  use  of  your 
telling  me  all  this  if  it  is  to  go  no  further  ?  and  how  can  I 
make  use  of  it  if  I  am  not  at  liberty  to  take  notes  of  it  ? ' 

"  '  That 's  your  affair,  not  mine  ;  I  have  nothing  to  do  with 
it.     Give  me  that  paper  or  I  '11  not  say  another  word.' 

"  And  I  have  been  obliged  to  surrender  my  memoran- 
dums as  a  peace-offering  to  secure  further  communication  ! 
All  this  is  prodigiously  absurd ;  but  it  is  our  lot  to  deal 
with  the  absurdities  not  less  than  with  the  passions  of 
mankind."  ^ 

§  103.  I  say,  in  contradiction  of  the  above  passage,  that 
I  have  taken  down  the  statements  of  many  witnesses  with- 

1  Adventures  of  an  Attorney,  Am.  ed.,  294  et  seq. 


74  CONDUCT  OUT  OF   COURT. 

out  having  a  single  one  to  object.  Nor  have  I  ever  known 
one  to  decline  to  sign  the  abstract  of  his  testimony.  Some- 
times a  witness  has  reqnired  as  the  condition  of  his  signing 
that  he  be  furnished  at  once  with  a  copy. 

§  104.  In  the  following  excerpt  jMr.  Warren  tells  how  a 
witness  was  effectually  committed  against  his  bias. 

"An  action  was  pending  upon  a  promissory  jiotc  for  a 
large  amount,  which  had  been  given  to  the  lender  by  the 
principal  debtor,  and  the  defendant  (his  aunt)  as  his  surety. 
The  former  became  insolvent,  and  the  payee  .  .  .  immedi- 
ately sued  the  surety,  who  was  a  responsible  person.  The 
plaintiff  however  found  himself  suddenly  encount  red  by  a 
serious  difficulty  in  showing  the  signature  to  be  that  of  the 
defendant,  whose  niece,  it  seemed,  had  signed  it,  in  her 
aunt's  name  and  by  her  exj)ress  direction.  The  former 
was  now  disposed  to  deny  having  had  authority  for  doing 
so  ;  and  no  one  else  had  been  present  at  the  time  of  the 
signature  but  the  insolvent  principal  debtor,  whose  evidence 
was  expected  to  be  also  hostile.  It  suddenly  occurred  to 
the  plaintiffs  attorney,  in  this  dilennna,  to  go  to  the  Insol- 
vent Court  and  oppose  the  insolvent's  discharge,  in  order 
to  have  the  opportunity  of  examining  him  quietly  upon  the 
matter,  without  his  being  aware  of  the  true  object.  This 
was  done  ;  and  there  was  adroitly  extracted  from  the  un- 
suspecting insolvent,  upon  oath,  a  clear  acknowledgment 
that  he  had  heard  the  defendant  authorize  her  niece  to 
affix  her  aunt's  signature  to  the  note,  and  he  had  seen  the 
signature  affixed  accordingly.  A  day  or  two  afterwards  the 
astounded  insolvent  was  sei-ved  with  a  subpoena  to  prove 
this  fact  on  the  trial  of  the  cause ;  and  the  instant  that  the 
defendant's  advisers  heard  of  that  circumstance,  they  suc- 
cumbed, on  the  very  day  of  the  trial,  when  the  cause  was 


PREPARATION  OF  THE  EVIDENCE.      75 

on  the  eve  of  being  called  on  :  the  defendant  unexpectedly 
submitting  to  a  verdict  by  consent  for  the  full  amount, 
which  was  duly  paid.  But  for  this  ingenious  manoeuvre 
the  plaintiff  would  in  all  probability  have  been  unjustly 
defeated."  ^ 

§  105.  Probably  the  most  common  mode  of  securing 
doubtful  testimony  is  to  have  the  \vitness  repeat  it  in  the 
presence  of  persons  of  good  character.  The  fear  of  be- 
ing contradicted  by  them  will  generally  keep  him  to  this 
narrative. 

And  we  suppose  that  every  careful  lawyer  can  recall 
some  instance  in  his  practice  when  he  took  time  by  the 
forelock  and  obtained  from  an  anticipated  witness  a  letter 
stating  what  he  would  testify,  before  any  warping  influence 
had  begun  to  work  on  him,  and  he  afterwards  saw  that 
the  ^ntncss  regretted  writing  that  in  which  the  truth  was 
poured  out  so  unrestrainedly. 

You  will  now  and  then  have  an  opportunity  of  taking 
an  affidavit  to  support  the  allegations  of  a  bill  in  equity,  or 
an  answer  thereto,  by  which  you  have  the  affiant  put  him- 
self down  in  black  and  white. 

A  person  once  professed  himself  ready  to  support  certain 
statements  in  a  bill  for  injunction  which  I  had  every  reason 
to  know  were  true  ;  but  he  was  sent  off"  in  order  to  consult 
a  memorandum  and  refresh  his  memory  of  other  facts 
which  it  was  desirable  to  prove.  During  his  absence  he 
fell  under  hostile  influences,  and  when  he  returned  he 
could  recollect  nothing  at  all.  Had  such  an  affidavit  as 
he  could  then  give  been  promptly  taken  at  first,  a  most 
material  preponderance  would  have  been  gained  for  the 
complainant. 

1  Law  Studies,  3d  ed.,  462,  463. 


76  CONDUCT  OUT  OF  COURT. 

§  lOG.  The  written  c\i(lcncc  requires  a  word.  In  some 
places,  wliere  the  court  and  registry  offices  liavc  insufficient 
protection  against  fire  or  thieves,  it  is  often  prudent  to  get 
as  soon  as  you  can  a  duly  authenticated  copy  of  whatever 
document  or  record  in  these  offices  is  of  importance  to 
you.  And  there  are  many  relevant  private  writings  of 
which  you  cannot  acquire  the  custody,  such  as  unrecorded 
conveyances  and  agreements,  letters,  accounts  current,  en- 
tries in  books,  etc.  You  should  at  the  earliest  opportunity 
have  accurate  copies  made  of  these  and  provide  yourself 
with  sufficient  proof  of  their  accuracy,  this  proof  to  be  used 
in  case  the  originals  become  inaccessible. 

§  107.  Having  set  forth  the  general  modes  of  ascertain- 
ing the  narratives  of  witnesses  and  confirming  them  in  the 
same,  and  of  collecting  the  written  jiroof  and  placing  it 
beyond  the  chance  of  concealment  or  destruction,  we  will 
now  consider  the  next  stage.  This  is  to  obtain  the  proper 
process  for  compelling  the  attendance  of  the  witnesses  and 
the  production  of  the  documentary  e\4dence.  Subpoena, 
duces,  notice  to  produce  documents,  —  these  suggest  the 
means  most  commonly  used.  And  it  must  not  be  forgotten 
that  there  are  many  witnesses,  such  as  females,  and  males 
residing  out  of  the  county  or  district,  whose  testimony  can 
only  be  coerced,  in  civil  cases,  by  suing  out  a  commission. 
The  law  of  the  State,  or  the  federal  law-books  if  the  case 
is  in  a  court  of  the  United  States,  usually  contain  full  and 
precise  directions,  which  should  be  conformed  to  in  all 
these  matters. 

§  108.  It  is  often  a  question  of  policy  whether  you  shall 
avoid  the  disclosure  which  will  necessarily  be  made  to  the 
adversary  by  your  resort  to  some  of  the  means  just  enumer- 
ated.    It  may  be  better  now  and  then  to  rely  only  upon 


PREPARATION   OF   THE  EVIDENCE.  77 

the  promise  of  a  witness  to  attend,  or  that  of  a  possessor 
of  a  document  to  produce  it.  The  subject  of  keeping  one's 
important  secrets  will  be  specially  considered  after  a  while. 
But  ordinarily  there  is  no  good  reason  to  fear  such  a  dis- 
closure and  it  is  but  i)roper  diHgence  to  sue  out  the  process 
and  have  it  executed  at  once. 

§  109.  We  must  say  a  word  of  your  duty  when  you 
have  but  a  single  witness  to  a  material  point,  or  some  of 
your  important  witnesses  are  of  infirm  health,  —  a  subject 
whicli  really  belongs  as  much  to  the  first  division  of  this 
stage  of  preparation  treated  above  as  to  that  now  in  hand. 
The  process  of  the  court  does  not  run  into  the  other  world, 
whither  they  may  have  gone  when  you  would  swear  them. 
In  all  the  instances  just  supposed,  it  is  the  right  course  to 
have  the  testimony  perpetuated  in  the  most  expeditious 
way  allowed  by  the  law.  The  family  of  the  client  may 
then  be  protected  after  lie,  his  witness,  and  his  lawyer  are 
in  their  graves.  We  suggest  that  you  should  have  all  the 
important  witnesses  for  the  defence  of  a  client  charged  with 
a  crime  who  are  not  likely  to  live  long  to  testify  in  full  at 
the  examination  of  your  client  by  the  magistrate,  as  he  is 
required  to  make  a  minute  of  the  evidence,  which  minute 
can  be  used  afterwards  if  the  witness  cannot  be  had. 
Likewise,  when  a  witness  has  been  examined  in  a  civil 
case,  if  there  is  another  trial  of  substantially  the  same 
issue  between  the  same  parties,  his  testimony  can  be  proved, 
he  being  then  dead  or  inaccessible. 

§  110.  The  second  object  of  an  intelligent  preparation 
is  to  obtain  if  possible  additional  advantages.  A  mine  of 
facts  is  often  inexhaustible  for  a  great  while.  Note  some 
contested  question  in  history,  —  how  centuries  ^vill  pass 
away  before  it  is  settled.     Many  of  the  pertinent  particu- 


78  CONDUCT   OUT  OF   COURT. 

lars  are  dispersed  or  concealed,  and  it  requires  time  to 
collect  or  discover  tlieiu  all.  Some  of  them,  though  known 
in  a  measure,  have  never  been  fully  understood.  So  with 
the  facts  of  a  case.  Your  vigilance  and  search  should 
never  end.  Strive  to  learn  more  and  more.  Scour  every 
possible  nook  and  corner  where  evidence  may  be  hidden, 
and  you  will  often  make  favorable  developments  which 
will  astound  your  client.  As  preparation  goes  on,  it  re- 
veals sources  of  information  not  even  suspected  before. 
Thus  you  may  detect  a  bias  warping  the  adverse  witnesses, 
which,  if  it  can  be  proved,  may  unload  their  testimony  of 
all  its  weight.  You  may  find  out  that  a  grant  on  which 
the  adversary  relies  is  a  forgery,  or  that  a  deed  supporting 
his  title  is  void,  or  that  a  very  formidable  witness  has  given 
in  the  hearing  of  credible  persons  an  account  of  the  trans- 
action contradicting  that  he  is  now  expected  to  make. 
Time  does  not  serve  to  enumerate  instances  of  the  advan- 
tages which  may  be  acquired  after  you  have  begun  to  pre- 
pare your  case.  The  trial  itself —  when,  as  you  believe, 
you  have  exhausted  and  drained  dry  every  fountain  of  rele- 
vant evidence  —  will  often  give  you  hints  from  which  you 
may  profit,  even  before  it  is  concluded,  to  the  strengthening 
of  your  case. 

§  111.  We  will  enforce  our  counsels  with  a  few  ex- 
amples. 

An  experienced  practitioner,  as  he  told  me,  once  had 
great  need  to  ascertain  who  had  drawn  an  instrument 
which  was  then  the  subject  matter  of  important  litigation. 
He  had  used  the  information  of  his  client,  who  was  the 
executor  of  the  person  for  whom  the  instrument  had  been 
drawn,  and  he  had  inquired  wherever  he  thought  it  at  all 
probable  that  he  could  learn  anything  of  the  matter,  but 


PREPARATION  OF   THE  EVIDENCE.  79 

failing  everywhere  and  thinking  of  no  other  possible  chance 
he  had  given  up  in  despair.  Soon  afterwards,  being  en- 
gaged in  the  trial  of  a  cause  in  a  distant  county  which  he 
had  never  visited  before,  while  listening  to  the  examination 
of  a  witness  by  the  other  side,  he  heard  some  one  behind 
him  whisper  of  the  instrument  to  another.  He  pricked  up 
his  ears,  and  the  talker  said  that  the  first  money  he  had 

ever  nuide  was  by  copying  it  for ,  an  eminent  counsel 

known  to  our  lawyer  only  by  reputation.  The  secret  was 
thus  casually  discovered.  Upon  corresponding  with  the 
draftsman  his  testimony  was  found  to  be  most  material,  as 
anticipated.  Our  friend  confessed  that,  aftir  he  had  thus 
obtained  what  he  had  so  long  desired,  nothing  could  seem 
more  natural  than  that  the  instrument  should  have  been 
dra\\Ti  by  this  very  counsel,  and  that  had  he  rightly  rea- 
soned from  his  information  he  would  have  discovered  the 
fact  months  before  he  did. 

§  112.  The  collateral  heirs  of  an  intestate  who  had  left 
a  large  estate  had  brought  a  bill  against  the  administrator. 
To  the  great  surprise  of  the  complainants,  the  answer  of 
the  administrator  set  up  a  claim  against  the  intestate  larger 
than  the  estate.  There  was  no  mention  of  this  claim  in  his 
returns,  as  there  ought  to  have  been  under  the  circum- 
stances had  it  been  genuine  ;  and  the  counsel  for  the  heirs 
had  other  reasons  for  belie\ing  it  an  invention.  But  as 
the  defendant  was  a  popular  man  and  had  always  borne  a 
good  reputation,  it  was  plainly  necessary  to  add,  if  possi- 
ble, new  support  to  the  bill.  There  had  been  several  full 
consultations  with  one  of  the  heirs  after  the  filing  of  the 
answer,  and  she  at  last  declared  emphatically  that  she  had 
disclosed  all  of  importance  that  she  knew.  The  adminis- 
trator was  her  brother,  and  the  two  had  long  lived  in  dif- 


80  CONDUCT   OUT   OF   COURT. 

ferent  counties.  Reflecting  upon  this,  and  upon  the  fact 
that  the  administrator  had  been  suable  for  several  years 
before  the  bill  was  brought,  the  leading  counsel  for  the 
heirs  inferred  that  the  sister  must  have  received  some  let- 
ters from  the  brotlicr  of  which  good  use  could  now  be 
made,  and  he  had  his  junior  to  visit  her  again.  She  could 
recollect  no  letter,  and  she  could  hardly  be  induced  to 
make  a  search.  But  she  was  at  last  made  to  find  a  letter. 
It  had  been  written  soon  after  the  qualification  of  the  ad- 
ministrator, and  it  was  a  lengthy  summing  up  of  reasons 
why  the  sister  could  get  nothing  from  the  estate.  There 
was  not  the  slightest  hint  in  it  of  the  claim  mentioned 
above  ;  but  on  the  contrary  it  contained  certain  expressions 
which  negatived  its  existence.  Of  course  this  letter  proved 
of  great  service  to  the  heirs. 

§  113.  The  last  instance  which  we  give  here  shows  that 
sometimes  the  progress  of  the  trial  afibrds  good  oppor- 
tunity to  get  new  and  important  e\Tidence. 

On  the  trial  of  an  indictment  for  burglary,  a  witness  tes- 
tified that,  having  been  delegated  by  his  employer  to  watch 
the  premises,  he  had  concealed  himself  under  a  house,  and 
while  there  he  saw  the  defendant  standing  at  that  door  of 
the  neighboring  building  which  had  been  broken  about  the 
time  the  ofi'ence  must  have  been  committed.  Under  the 
cross-examination  the  witness  was  made  to  locate  himself 
precisely  at  a  certain  pillar  supporting  the  house.  A  repu- 
table man  was  slyly  procured  to  put  himself  in  the  place, 
and  he  returned  in  tiipe  to  prove  for  the  defendant  that 
one  in  such  a  position  could  not  possibly  see  the  door  in 
question.  This  testimony  destroyed  the  credit  of  the 
State's  witness. 

§  114.    The  third  object  of  preparation  is  —  anticipating 


PREPARATION   OF  THE   EVIDENCE.  81 

your  adversary's  case,  as  will  be  explained  hereafter  —  to 
cripple  him  and  abridge  his  advantages.  For  instance, 
there  may  be  strong  popular  feeling  prevailing  against  a 
client  charged  with  a  great  crime,  and  if  you  can  procure 
a  continuance  the  passionate  prejudice  giving  the  Common- 
wealth the  superiority  may  subside  before  the  trial.  Here 
you  must  stand  ready  with  a  proper  showing,  if  possible. 
Again,  you  may  be  aware  of  overwhelming  evidence  against 
you,  while  the  adversary  has  not  discovered  it.  By  adroit 
management  you  may  conceal  it  effectually,  or  you  may 
force  a  trial  immediately  ;  and  he  may  in  neither  case  ever 
discover  it. 

§  115.  The  foUo^ving  is  an  example  of  neglecting  an 
opportunity  to  cripple  the  adversary. 

A  statute  permitting  parties  to  testify  made  an  excep- 
tion where  one  of  the  parties  to  the  contract  or  cause  of 
action  was  dead.  This  was  held  to  exclude  the  livins  one 
only  when  the  estate  of  the  dead  party  would  be  directly 
affected  by  the  judgment  in  the  particular  case.  In  an 
ejectment  where  the  plaintiff  was  re-entering  for  condition 
broken,  he  could  prove  the  breach  only  by  himself.  The 
defendant  had  purchased  from  one  deriving  title  from  the 
plaintiff.  The  man  to  whom  the  latter  had  conveyed  on 
condition  was  dead,  and  had  his  representative  been  vouched 
by  the  defendant  as  a  co-warrantor  and  made  a  party,  the 
plaintiff  would  not  have  been  competent  under  the  local 
adjudications  to  prove  the  breach,  as  the  judgment  would 
then  have  affected  the  estate  of  the  dead  party.  Omitting 
to  vouch  the  representative  of  this  warrantor  lost  the 
defendant  the  case. 

§  116.  One  of  the  most  common  instances  in  practice 
of  embarrassing  your  adversary,  is  to  make  out  a  prima 

6 


82  CONDUCT   OUT  OF   COURT. 

facie  case  if  you  can  without  examining  a  person  who  can 
testify  strongly  for  you  and  who  must  be;  called  by  the 
other  party.  The  latter  by  calling  him  makes  him  his  own 
witness,  whom  he  cannot  discredit,  and  on  the  cross-exami- 
nation you  will  elicit  all  of  his  favorable  knowledge. 

There  is  often  opportunity  to  draw  away  from  the  ad- 
versary some  of  his  strong  supporters.  It  may  be  that  a 
joint  party,  or  the  relative  or  employer  or  friend  of  a  party, 
may  be  brought  to  form  an  alliance  with  you,  in  which 
case  you  may  have  an  accession  of  testimony.  The  longer 
you  practise,  the  smaller  will  be  the  proportion  of  witnesses 
you  meet  whose  testimony  is  not  colored  by  their  interest 
and  affections. 

§  117.  We  have  enumerated  and  briefly  treated  the 
three  general  objects  of  preparation.  The  student,  from 
his  own  observation  or  invention,  will  supply  many  more 
instances  than  those  which  we  have  given  illustrating  each 
one  of  the  three  divisions.  And  he  must  leave  it  to  fur- 
ther study  and  the  teachings  of  practice  to  give  him  a  firm 
hold  of  the  important  parts  of  the  subject  we  have  just 
had  in  hand.  We  go  on  to  treat  some  of  its  other  parts 
for  which  we  could  not  find  a  proper  place  heretofore. 

§  118.  Your  preparation  should  not  be  allowed  to  hurt 
the  client.  If  the  lawyer  is  careless  he  will  often  produce 
evidence  which  will  be  turned  against  him  with  damaging 
effect.  He  should  seek  to  avoid  conflicts,  contradictions, 
and  aid  of  the  adversary  in  his  own  positions  and  evi- 
dence. 

We  will  give  two  instances  of  a  party's  injuring  himself 
rather  than  his  adversary  by  his  own  evidence. 

The  first  was  on  a  caveat  to  a  will  propounded  for  pro- 
bate, the  issue  being  whether  the  witnesses  signed  in  the 


PKEPARATION  OF  THE  EVIDENCE.      83 

presence  of  the  testator.  Tlierc  was  no  doubt  that  he  and 
all  of  the  witnesses  were  present  when  the  execution  coin- 
menced,  but  the  caveators  contended  tliat  he  left  the  room, 
before  the  witnesses  signed.  The  recollection  of  the  sub- 
scribing witnesses  was  not  clear,  and  the  court  held  that 
by  reason  of  this  testimony  there  was  a  prima  facie  pre- 
sumption of  due  execution.  To  rebut  this  presumption 
the  caveators  read  the  testimony  of  two  women  which  had 
been  taken  by  commission.  These  two  were  in  the  room 
during  the  execution  of  the  paper,  and  both  of  them  testi- 
fied positively  that  the  testator  went  out  in  company  with 
themselves  before  the  subscribing  witnesses  had  signed. 
This  testimony  seemed  to  overwhelm  the  propounders  ; 
but  when  it  was  criticised  it  was  shown  that  in  every  other 
respect  save  that  they  carried  the  testator  off  before  the 
subscription  by  the  mtnesses  these  two  were  in  irreconcil- 
able conflict  with  each  other.  One  said  that  the  testator 
accompanied  her  and  her  companion  to  the  room,  while  the 
other  said  that  tlie  testator  was  already  in  the  room  when 
they  came  and  she  did  not  know  whence  he  came.  They 
disagreed  as  to  the  order  of  leaving.  One  said  that  the 
testator  went  out  with  the  two  and  at  her  side,  the  other 
said  that  he  came  behind  them.  According  to  one  of 
them  the  two  went  out  into  the  hall  and  passed  up  to  the 
door  of  the  sitting-room,  where  they  stopped;  the  other 
carried  the  whole  party  at  once  into  the  sitting-room. 
Again,  each  one  of  them  was  at  variance  in  other  particu- 
lars with  tlie  weight  of  tlie  evidence ;  in  many  instances 
the  variations  being  tri\4al,  to  be  sure,  but  yet  of  great  im- 
portance for  testing  the  accuracy  of  their  memories.  The 
l>aper,  at  the  time  of  its  execution,  was  primarily  intended 
as  a  settlement,  and  it  was  not  known  by  the  subscribing 


84  CONDUCT   OUT   OF   COURT. 

witnesses  nor  the  women  to  be  also  a  will,  and  none  of 
them  pretended  to  have  closely  observed  the  details  of  its 
execution.  Many  years  had  elapsed  since  the  occurrence 
under  investigation.  One  of  the  women  was  interested 
with  the  caveators  and  the  other  strongly  biased  in  their 
favor.  The  jury  could  not  trust  their  memories  in  the 
solitary  particular  where  they  agreed,  and  they  found  a 
verdict  setting  up  the  will. 

Now  had  the  counsel  who  prepared  the  evidence  for  the 
caveators  done  his  duty  in  carefully  sifting  the  two  women 
before  they  testified,  he  would  have  discovered  these  con- 
flicts. His  course  would  then  have  been  plain.  He  would 
have  got  a  commission  for  and  examined  only  one,  selecting 
that  one  who  had  no  interest  in  the  event  of  the  case.^ 

§  119.  The  other  illustration  occurred  in  the  trial  of  an 
action  which  a  local  statute  permitted  to  be  brought  by 
the  heirs  at  law  against  the  administrators  of  the  intestate 
and  their  sureties.  The  defence  was  the  general  issue, 
denying  every  part  and  parcel  of  the  large  waste  alleged 
by  the  plaintiffs.  An  experienced  lawyer,  who  specially 
represented  the  sureties,  offered  a  voluminous  transcript  of 
documentary  evidence,  by  which  he  apparently  set  great 
store.  It  was  received  without  objection,  the  reading  being 
waived.  His  discomposure  was  very  great  when  the  o-p- 
posing  counsel,  in  his  argument,  showed  that  this  transcript, 
among  other  things,  contained  proceedings  taken  some 
years  before  by  these  very  sureties  against  these  same  ad- 
ministrators, wherein  a  receiver  of  the  assets  of  the  intes- 
tate's estate  was  appointed  by  the  present  counsel  of  the 
sureties,  who  was  at  that  time  a  judge.     The  sureties  had 

1  Had  the  witnesses  been  examined  together,  as  might  have  been  done, 
perhaps  there  would  have  been  less  contrariety  in  their  testimony. 


PREPARATION  OF  THE  EVIDENCE.      85 

obtained  the  appointment  of  the  receiver  bj  complaining 
of  the  same  waste  which  they  now  denied.  Of  course  this 
evidence  sliould  have  been  omitted,  as  there  was  nothing 
in  the  whole  of  it  to  compensate  for  the  damaging  effect 
of  the  appointment  mentioned.  It  gave  the  counsel  for 
the  plaintiffs  a  great  moral  advantage  which  perceptibly 
cowed  his  able  adversary. 

§  120.  The  one  sure  preventive  of  such  self-caused  inju- 
ries is  a  careful  contemi)lation  and  study  of  all  the  details 
of  a  case  during  its  preparation.  Not  only  should  every 
parcel  of  the  evidence  be  studied  and  construed  as  if  de- 
tached from  the  rest,  but  its  effect  on  the  whole  must  be 
understood.  And  this  should  be  done  before  the  evidence 
is  made  accessible  to  the  other  party.  It  is  disgraceful 
stupidity  for  you  yourself  to  arm  your  adversary. 

§  121.  You  nmst  stand  on  your  guard  against  the  efforts 
of  the  adversary,  divining  his  purpose  and  preparing  against 
it.  You  must  make  him  disclose  his  hand,  using  however 
no  discreditable  artifices  or  tricks.  A  lawyer  is  not  to 
eavesdrop  or  listen  at  keyholes.  There  are  honorable  ways 
of  acquiring  a  knowledge,  more  or  less  accurate,  of  the  de- 
signs and  doings  of  the  other  side.  Further  testimony, 
both  oral  and  written,  comes  to  light  during  the  investiga- 
tion, and  you  see  that  it  will  probably  be  used  by  him. 
And  it  is  not  women  only  who  are  unsecret.  Generally, 
men  engaged  in  any  controversy  which  involves  much  feel- 
ing, as  is  usually  the  case  in  litigation,  are  prone  to  predict 
success  for  themselves  and  explain  to  their  hearers  by  what 
evidence  and  legal  principles  they  expect  to  win.  Lawyers 
as  a  class  are  communicative.  And  cases  that  turn  upon 
disputed  facts  usually  divide  witnesses  into  parties  who 
talk  and  argue  with  one  another.     To  profit  by  this,  you 


86  CONDUCT  OUT  OF   COURT. 

should  depute  your  coolesUieaded  witness  to  get  an  accu- 
rate report  of  what  the  opposite  witnesses  say  that  they 
will  swear.  We  have  known  this  stratagem  to  succeed 
more  than  once.  Witnesses  in  general  become  partisans. 
It  does  really  seem  that  many  of  them  feel  bound  to  give 
their  good  wishes  wholly  to  the  party  who  has  subpoenaed 
them.  They  will  often  go  great  lengths  to  serve  their 
friends.  Amid  a  considerable  number,  there  will  nearly 
always  be  one  qualified  for  making  the  report  just  men- 
tioned ;  and  you  will  often  find  that,  when  you  have 
reflected  over  what  is  reported,  much  of  its  formidable 
character  can  be  removed  by  a  cross-examination  judiciously 
planned,  or  that  you  can  easily  provide  counter  testimony 
to  overwhelm  it. 

§  12-2.  The  unadvised  talk  of  the  adversary,  his  lawyers, 
witnesses,  and  friends,  is  not  all  that  you  must  attend 
to.  His  pleadings,  and  the  amendments  thereof  from 
time  to  time,  his  resort  to  new  remedies,  his  application 
for  subpoenas,  commissions  to  examine  witnesses,  orders, 
etc.,  the  proposals  which  he  submits  and  the  waivers  he 
solicits,  and  all  'his  movements,  should  be  carefully  ob- 
served and  thought  over.  They  will  often  throw  a  bright 
light  upon  designs  and  operations  which  he  believes  are 
known  only  to  himself. 

§  123.  And  you  should  consider  if  there  be  any  remedy 
or  move  open  to  you  by  which  a  disclosure  can  be  forced. 
There  are  correspondences  in  litigation  to  the  armed  re- 
connoissances  of  warfare.  Thus,  by  a  motion  to  dissolve 
an  injunction  when  the  answer  swears  off  the  equity  of 
the  bill,  you  may  drive  the  complainant  to  a  support  by 
affidavits  which  .will  accurately  inform  you  of  much  of  his 
testimony. 


-    PREPARATION   OP  THE   EVIDENX'E.  87 

Again,  you  may  be  defending  one  charged  Avith  a  crime 
and  arrested  on  a  warrant  before  indictment  found,  and  by 
refusing  to  waive  an  examination  and  give  bail,  as  the  local 
law  often  allows,  and  making  a  stout  contest  before  the 
magistrates,  you  may  draw  out  the  whole  case  of  the  State, 
keeping  your  own  back  if  you  choose. 

One  of  the  advantages  of  holding  the  initiative  is,  that 
when  you  prove  a  prima  facie  case  on  the  trial,  the  adver- 
sary must  offer  overcoming  evidence  in  order  to  avoid  an 
adverse  verdict,  while  you  can  dismiss  if  you  arc  afraid  to 
risk  the  jury  ;  and  [)crh:ips  you  learn  from  this  observation 
of  his  proofs  how  to  be  the  stronger  after  your  renewal. 

It  is  not  needed  to  exhaust  the  illustrations  which  the 
law  of  procedure  affords.  It  suffices  to  say  that  it  gives 
everywhere  to  the  practitioner  remedies  Avhich  he  will  often 
use  wisely  for  no  other  purpose  than  to  reconnoitre  or  feel 
of  his  adversary. 

§  124.  We  must  not  forget  to  say  that  no  professional 
man  in  America  has  so  many  warm  personal  friends  as  the 
lawyer.  They  take  a  pleasure  in  giving  their  f^ivorite  all 
the  information  possible  in  his  cases,  often  doing  for  him 
what  they  would  not  for  the  client. 

§  125.  By  reason  of  the  different  means  enumerated 
above,  the  secrets  of  almost  every  case  arc  revealed  be- 
fore the  trial.  At  least  they  are  told  to  those  who  know 
how  to  listen  for  them.  As  they  come  out,  part  by  part, 
scattered  here  and  there  in  different  places,  it  may  be  over 
a  large  neighborhood,  it  is  the  duty  of  the  lawyer  to  col- 
lect these  fragments,  put  them  together  properly,  and 
learn  what  mischief  is  plotting  against  him.  And  he 
nmst  disprove  as  far  as  possible  every  material  particular 
of  evidence  wliich  he  anticipates  will  be  advanced  by  the 


88  CONDUCT  OUT  OF  COURT. 

other  side.  Care,  on  tliis  point  is  indispensable  to  the 
proper  eondnct  of  a  trial. 

§  120.  It  is  often  politic,  as  we  have  hinted,  that  you 
conceal  your  purposes  and  proof.  This  is  not  always  so, 
for  it  is  now  and  then  the  more  successful  course,  as  is 
usually  the  case  when  you  are  opposed  to  great  frauds  or 
heinous  crimes,  to  play  with  an  open  hand  and  make  the 
sympathy  of  all  good  people  active  for  your  cause  by  dis- 
closing your  strongest  evidence.  But  as  to  proper  conceal- 
ment we  begin  by  cautioning  you  not  to  talk  to  your  client 
too  freely.  You  need  not  tell  him  your  plan  and  anticipa- 
tions, even  when,  you  have  him  executing  the  one  and 
providing  against  the  other.  He  is  often  leaky  and  over- 
talkative.  In  litigation,  secrecy  is  sometimes  of  as  much 
avail  as  it  is  in  the  project  and  movements  of  a  campaign. 
Let  your  knowledge  of  human  nature  and  what  you  deem 
the  true  interests  of  the  case  settle  for  you  whether  to 
make  a  full  confidant  of  the  client  or  not. 

§  127.  When  it  is  the  true  policy  the  prudent  practi- 
tioner will  guard  against  the  escape  of  his  secrets,  uot 
trusting  client,  friends,  witnesses,  or  his  imprudent  asso- 
ciates overmuch.  Sometimes  he  needs  to  be  very  ingeni- 
ous to  succeed.  He  had  better  talk  with  his  witnesses 
separately,  and  out  of  the  hearing  of  his  client  if  the  latter 
cannot  exercise  reticence.  If  he  discovers  that  the  adver- 
sary has  set  a  trap  to  catch  some  of  his  secrets,  he  should 
make  a  dupe  of  him.  The  laws  of  civilized  warfare,  though 
demanding  of  the  combatants  the  strictest  observation  of 
all  the  requirements  of  a  sound  morality,  permit  to  both 
the  use  of  honorable  stratagem.  No  faith  is  to  be  violated. 
What  you  do  should  not  shock  the  conscience,  it  should 
only  deceive  the  head  of  the  enemy.     If  the  trust  of  the 


PREPAKATION   OF   THE   EVIDENX'E.  89 

adversary  is  invited,  as  where  a  composition  or  an  accord 
is  proposed,  the  utmost  triithfuhiess  should  characterize  all 
comnmnications.  But  when  he  chooses  to  scrutinize  your 
actions  Avith  a  view  to  divine  your  purposes,  you  are  under 
no  obligation  to  help  him  discover  what  it  is  your  interest, 
right,  and  often  duty  to  keep  dark,  and  he  cannot  com- 
plain if  by  your  actions  you  mislead  him.  He  is  not  to 
force  his  credulity  into  your  keeping  as  his  trustee.  One  of 
the  objects  of  stratagem  is  to  mask  your  purpose,  whether 
it  be  attack  or  defence.  The  pleadings,  even  when  most 
accurately  and  technically  drawn,  hardly  ever  advise  the 
other  party  of  more  than  the  general  nature  of  the  defence 
or  attack  preparing.  The  plan  of  either  side  is  to  be  looked 
for  elsewhere.  Your  adversary  will  have  both  scouts  and 
spies  in  his  pay,  and  you  are  at  liberty  to  befool  them  by 
any  ruse  which  is  not  a  breach  of  honor.  You  can  keep 
from  the  witnesses  whom  you  sift  in  your  office  the  points 
to  which  you  are  really  examining  them,  by  questioning 
with  apparent  interest  about  many  other  things.  You  can 
hide  your  real  plan  from  your  client,  and  if  his  confidants 
are  entrapped  into  reporting  what  they  suppose  to  be  your 
designs  and  line  of  operations  and  thereupon  the  adver- 
sary shapes  his  course  against  what  he  has  mistakenly 
conceived  to  be  your  case,  he  can  ascribe  his  consequent 
disaster  only  to  himself.  He  trusted  his  own  judgment 
and  it  deceived  him. 

§  128.  We  have  considered  the  stratagem  which  foils 
the  adversary  prying  into  your  secrets.  There  is  another 
by  which  you  seek  to  create  a  false  impression  of  your  ob- 
ject. The  most  common  instance  is  where  you  subpoena 
one  whom  you  know  to  be  an  adverse  witness,  intending 
to  excuse  his  attendance  when  it  is  too  late  or  impossible 


90  CONDUCT  OUT   OF   COURT. 

for  tlio  adversary  to  have  liiin.  There  is  an  infinite  variety 
of  ways  to  disguise  your  true  aim  under  tiie  pretext  of  a 
different  one.  The  circumstances  of  the  particular  case 
dictate  the  proper  stratagem. 

It  must  be  remembered  that  stratagem  is  a  game  whicli 
two  can  pUiy  at.  Beware  that  you  are  not  caught  by  those 
of  the  opposite  side  and  that  yoU  do  not  yourself  fall  iuto 
the  pits  that  you  dig  for  others. 

It  is  also  to  be  said  that  it  is  more  and  more  demanded 
of  parties  and  their  counsel  that  there  be  no  suppression 
of  the  truth  and  no  deceit.  Wliere  the  other  party  is  un- 
scrupulous and  he  possesses  large  resources  of  testimony 
in  a  numerous  following,  or  where  popular  prejudice  is  un- 
justly against  you,  and  perhaps  in  other  instances,  you  will 
generally  find  it  necessary  to  keep  your  plan  closely,  to 
hide  the  decisive  evidence  upon  wliich  you  rely,  and  to 
mislead  the  adversary  as  to  both.  But  we  strongly  believe 
that  there  is  an  increase  in  average  litigation  of  controver- 
sies between  honest  litigants,  who  desire  only  that  the  full 
merits  of  each  side  be  Compared,  and  that  the  one  prevail 
which  is  found  to  be  in  the  right. 

§  129.  Returning  to  the  general  subject  of  the  chapter 
we  remind  "  our  jurisprudent "  that  the  law  is  the  great 
guide  to  the  lawyer  in  the  preparation  of  his  cases,  even 
in  the  matter  of  evidence.  He  finds  it  necessary,  it  may 
be,  to  prove  the  death  of  some  particular  man  ;  he  has  no 
witness  to  testify  to  the  fact  desired,  but  the  law  permits 
him  to  raise  the  presumption  of  its  existence  by  showing 
an  absence  of  the  person  in  question  for  a  certain  number 
of  years  without  having  been  heard  from.  The  books 
contain  minute  directio/is  as  to  the  proofs  required  to  sup- 
port particular  actions  and  pleas.     There  are  also  rules  for 


PREPARATION   OF   THE   EVIDENCE.  91 

weighing  evidence  :  thus  positive,  other  things  being  equal, 
will  overcome  negative ;  an  unbiased  witness  is  more  cred- 
ible than  another  to  the  same  fact  who  evinces  an  evident 
leaning  towards  one  of  the  parties.  It  is  not  our  object  to 
compile  the  law.  We  must  take  it  for  granted  that  our 
student  knows  its  general  principles.  And  we  earnestly  in- 
sist that  even  in  seeking  after  superiorities  of  evidence  his 
Stephen,  Greenleaf,  Wharton,  and  Abbott  be  reinforced  by 
the  digests  both  general  and  special,  and  especially  that  the 
reports  of  his  State  be  constantly  looked  to  for  guidance. 
It  is  true  that  the  law  of  evidence  grows  more  and  more 
liberal,  assimilating  itself  year  by  year  to  that  logic  which, 
according  to  the  title-page  of  John  Stuart  Mill,  contains 
"  the  principles  of  evidence  and  the  methods  of  scientific 
investigation."  Disabilities  and  incapacities  have  been  re- 
moved which  the  centuries  before  us  worshipped,  deluded 
into  believing  such  suppressors  to  be  the  guardians  of 
truth.  In  our  own  day  we  have  seen  millions  of  blacks 
made  competent  witnesses  in  all  kinds  of  cases.  Still  the 
law  is  not  ready  to  surrender  her  supremacy,  and  unfortu- 
nately an  argument  decisive  in  the  courts  can  often  yet  be 
made  from  facts  perverted  and  garbled  by  legal  rules  which 
is  not  a  logical  argument. 

§  130.  We  now  summarize  the  more  important  items 
which  we  have  been  considering. 

First.  The  evidence  found  to  exist  when  litigation  is 
decided  upon  is  to  be  put  under  command.  The  oral  tes- 
timony is  to  be  ascertained  precisely,  and  the  proper  steps 
taken  to  fix  the  fickle  or  those  under  an  adverse  bias  or 
interest  by  having  them  authenticate  their  statements  with 
their  signatures  or  make  them  in  the  presence  of  others. 
All  documents  are  to  be  guarded  against  the  peril  of 
removal  or  spoliation. 


92  CONDUCT  OUT  OF   COURT. 

As  the  second  stage  of  securing  existing  advantages  of 
evidence,  the  process  for  coercing  the  appearance  of  the 
witnesses  and  the  forthcoming  of  the  documents  must  be 
used.  It  is  also  pointed  out  wlicn  testimony  shoukl  be 
perpetuated.  Bhmders  here  arc  more  unpardonable  than 
anywhere  else  in  the  preparation.  The  duty  is  plain  from 
the  very  first.  In  the  subsequent  investigation  other  ad- 
vantages may  escape  discovery,  in  spite  of  great  industry ; 
but  if  you  do  not,  by  using  the  cheap  and  easy  process  of 
the  law,  assure  those  advantages  palpable  to  an  average 
practitioner  as  soon  as  the  case  is  presented,  the  damage 
resulting  to  the  client  is  fau'ly  chargeable  to  your  gross 
negligence. 

Second.  The  practitioner  must,  if  possible,  develop  a 
greater  force  in  his  proofs  than  they  appeared  to  have,  or 
he  must  acquire  others.  The  patient  study  of  the  facts  in 
order  to  get  their  full  meaning  is  hinted,  and  detailed  di- 
rections for  discovering  and  collecting  remaining  evidence 
are  given. 

Third.  It  is  shown  to  be  an  object  to  hem  hi  the  ad- 
versary and  curtail  his  available  supports,  and  examples 
are  given  to  emphasize  the  importance  of  attending  to 
this  duty. 

These  three  are  exhibited  as  the  leading  constituents  of  a 
rational  preparation.    Then  come  the  following  addenda:  — 

1.  Warning  is  given  against  hurting  your  client  and 
helping  the  other  side.  It  is  insisted  that  the  issue  be  so 
well  understood,  and  the  witness  or  document  be  so  accu- 
rately examined  beforehand,  that  no  adverse  testimony  be 
unwittingly  produced. 

2.  Then  the  modes  of  finding  out  the  opposite  case 
and  the  proper  counter  measures  to  be  taken  by  you  are 
reviewed. 


PREPARATION  OF  THE  EVIDENCE.      93 

3.  Next,  you  are  told  when  to  conceal  your  hand  and 
how  to  thwart  the  curiosity  of  your  adversary. 

4.  Lastly,  you  are  impressively  reminded  that  even  the 
principles  of  preparation  of  the  facts  are  derived  in  great 
part  from  the  law,  the  importance  of  its  department  of 
evidence  being  particularly  suggested. 

§  131.  So  nmch  for  the  subject  of  this  chapter.  The 
lawyer  should  prepare  upon  the  facts  with  unflagging  in- 
dustry. As  we  have  tried  to  impress  upon  the  student, 
often  after  the  case  appears  prima  facie  to  be  maintainable 
it  requires  great  labor  to  detect  all  of  the  supj)orting  testi- 
mony. You  ^^dll  be  led  to  more  and  more  of  it  by  probing 
the  witnesses,  your  client,  the  documents,  and  the  entire 
sources  of  information.  All  of  us  have  noted  the  shrewd- 
ness with  which  veteran  lawyers  guess  at  the  existence  of 
testimony.  Spare  no  pains  to  get  the  whole.  Nothing 
material,  whether  apparent  at  the  first  or  afterwards  found, 
should  be  thrown  away.  An  item  light  and  trivial  of  itself 
may  turn  the  scale.  Remember  the  maxim  of  Xapoleon  : 
"  When  you  have  resolved  to  fight  a  battle,  collect  your 
whole  force.  Dispense  with  nothing.  A  single  battalion 
sometimes  decides  the  day." 

Mr.  Warren  gives  advice  similar :  "  Always  orer-prove 
rather  than  under-yroxQ  your  case.  By  this  I  mean  that, 
when  you  have  got  so  far  in  a  cause  as  to  the  point  of 
trial,  you  should  not  peril  all  that  you  have  already  ex- 
pended and  damage  your  client's  interests  and  your  orni 
reputation  by  niggard  considerations  of  expense  in  provid- 
ing proofs  of  your  case.  Five  or  six  pounds  may,  as  it 
were,  insure  you  against  defeat,  by  excluding  all  fair  chance 
of  deficient  proof.  It  is  much  better  to  have  secured  a 
verdict  burdened  with  the  cost  of  a  superfluous  ^\itness. 


94  CONDUCT   OUT   OF   COURT. 

but  whose  testimony  might,  in  some  turn  of  the  cause,  have 
been  indispensable,  than  to  have  lost  a  verdict  which  you 
would  have  infallibly  gained  if  you  had  not  chosen  to  run 
so  near  the  wind  and  neglected  to  come  provided  with 
proof  which  might  not  have  increased  your  costs  a  couple 
of  pounds,  —  those  even  having  to  be  paid  by  your  oppo- 
nent. There  have  been  very  many  cases  in  which  a  party 
has  struck  at  the  trial,  especially  at  the  assizes,  on  seeing 
his  adversary  come  prepared  with  such  superabundant 
proof  as  excluded  all  chance  of  a  breakdown."  ^ 

§  132.  We  add  a  word  of  caution.  Beware  of  divert- 
ing yourself  and  the  jury  from  the  turning  points  by  attend- 
ing to  unimportant  matters.  One  who  has  made  a  brilliant 
and  solid  fame  as  a  lawyer  and  judge  ^  often  tells  me  that 
the  greatest  trouble  in  practice  and  on  the  bench  is  to  get 
rid  of  tlie  immaterial,  to  disentangle  the  merits  from  the 
mass  of  irrelevancies  with  which  they  are  mixed  up  by  the 
testimony  and  argument.  We  say  plainly  what  Mr.  War- 
ren really  means  :  over-prove,  if  you  can,  the  important 
and  decisive  points,  and  leave  all  the  others  to  the  care  of 
your  adversary. 

1  Duties  of  Attorneys,  Am.  ed.,  181  et  seq. 

2  Judge  L.  E.  Bleckley. 


PREPAEATION   OF   THE   LAW  OF   THE   CASE.      9a 


CHAPTER  III. 

PREPARATION  OF  THE  LAW  OP  THE  CASE. 

§  133.  In  a  great  number  of  cases  the  preparation  of 
the  evidence  occupies  but  little  time,  while  there  are  also 
many  in  which  it  requires  great  effort.  But  be  the  case  a 
transaction  intelligible  at  the  first  view  to  the  practised 
lawyer,  or  an  affiiir  of  multifiirious  details,  complicated, 
scattered,  and  where  many  of  them  cannot  be  found  ex- 
cept by  a  wise  and  persevering  search ;  the  facts  —  their 
complete  collection,  their  proper  assortment  and  classifica- 
tion, and  their  thorough  mastery — are  in  order  prior  to 
any  legal  inquiry.  This  is  the  justification  of  the  place  of 
the  last  chapter,  for  it  naturally  comes  just  before  this 
which  treats  of  the  preparation  of  the  law.  The  student 
should  learn  at  once  that  to  be  in  haste  to  take  up  the 
legal  investigation  of  a  case  is  generally  to  miss  the  real 
points  and  commit  himself  to  a  theory  inconsistent  with 
the  facts.  And  when  the  theory  is  formed  too  soon,  the 
facts  acquired  afterwards  will  be  distorted  to  suit  it.  But 
the  si)ecial  lesson  to  be  taught  here  is  that  this  premature 
beginning  at  the  wrong  end  causes  a  consideration  of  irrel- 
evant law  questions  which  is  nearly  always  misleading  and 
therefore  worse  than  useless. 

§  134.  The  foregoing  being  premised  as  to  the  impor- 
tance of  studying  the  evidence  before  determining  the  law 


96  CONDUCT   OUT   OF   COURT. 

of  the  case,  we  proceed  to  tlie  special  subject  of  tlie  present 
clia})ter.  Here  the  education  is  properly  connnenced  by  a 
brief  contemplation  of  practice.  A  young  man  without 
this  cannot  understand  us  at  all.  It  is  by  observation  and 
then  initiation  that  we  begin  to  learn  at  the  first,  and  the 
same  process  goes  on  in  many  places  to  the  last.  Manners, 
etiquette,  command  of  inferiors,  and  various  other  things, 
are  mysteries  which  can  be  fully  learned  only  after  a  season 
of  observation  and  trials  at  their  attainment. 

§  135.  Almost  the  first  remark  of  the  novice  who  has 
frequented  the  courts  for  a  while  is  that  the  lawyers 
wrangle  far  moi'e  as  to  facts  than  they  do  as  to  law.  He 
notes  next  that  when  they  dispute  as  to  the  law  it  is 
more  frequently  as  to  the  proper  application  of  some  legal 
rule  than  as  to  the  existence  of  such  a  rule.  The  law 
slowly  becomes  more  and  more  certain.  The  great  digests, 
the  repeated  revisions  and  codifications,  the  multiplication 
of  text-books,  and  the  growth  and  widening  sway  of  a  true 
science  of  jurisprudence,  are  all  systematizing  it  into  an 
harmonious  whole.  ]\Iuch  yet  remains  to  be  done.  But 
no  careful  observer  can  compare  the  present  law  of  many 
of  the  States  with  that  of  half  a  century  ago  without 
seeing  that  nearly  the  whole  body  of  the  rules  usually 
administered  in  the  every-day  business  of  society  has  be- 
come easier  to  find,  easier  to  understand,  and  easier  to 
apply.  The  tyro,  from  the  codes  and  revised  statutes,  will 
answer  unerringly  many  a  query  which  years  ago  would 
have  puzzled  the  ablest  and  wisest  lawyers.  The  long 
arguments  of  these  days  are  generally  in  the  discussion  of 
the  particulars  of  the  case  in  hand.  The  treatment  of  pure 
law  questions  is  usually  short,  —  shorter  now  than  it  was 
formerly.     The  tendency  is  to  smaller  text-books  upon  the 


PREPARATION   OF   THE  LAW  OF   THE   CASE.     97 

older  subjects,  and  to  digests  such  as  those  of  Sir  James 
Stephen.  A  concise  statement  of  the  true  law,  without 
discussion,  is  more  and  more  demanded. 

§  136.  To  the  uninitiated  it  would  appear  that  the  law 
of  the  case  is  by  far  the  more  important  part  of  the  prepa- 
ration. But  experience  teaches  that,  while  the  practitioner 
must  know  well  the  law  which  is  of  familiar  application, 
his  principal  business  in  his  cases  is  generally  with  the 
facts.  A  legal  question  will  be  decided  by  rules  with 
which  he  becomes  better  and  better  acquainted,  while 
every  question  of  fact  arising  is  to  be  settled  by  new  proofs. 
It  may  serve  to  bring  out  more  clearly  the  contrast  of  law 
growing  more  certain  year  by  year  to  the  lawyer  and  facts 
forever  springing  up  freshly  around  him,  to  state  that  he 
is  to  satisfy  the  court  as  to  the  former  by  the  use,  day  after 
day,  of  the  same  books  and  texts,  which  at  last  become 
a  lesson  learned  by  heart ;  but  to  decide  the  latter,  he  has 
witnesses  and  documents  in  every  case  to  deal  with  that 
he  never  heard  of  before,  every  one  of  which  must  always 
be  investigated  for  and  by  itself. 

§  137.  What  we  have  said  in  the  last  sections  is  true  in 
the  average  of  cases.  But  occasionally  a  lawyer  gains  an 
unexpected  victory  by  showing  that  some  generally  received 
notion  is  not  law.  One  of  the  most  famous  of  such  exploits 
was  the  success  of  Scott  (afterwards  Lord  Eldon)  in  Akroyd 
V.  Smithson,  while  he  was  young  and  waiting  for  business. 
A  testator  had  directed  his  real  estate  to-  be  sold,  and  the 
residue  of  the  proceeds  after  payment  of  debts  and  expenses 
he  bequeathed  to  certain  persons.  One  of  these  had  died 
before  the  testator,  and  in  a  bill  filed,  among  other  things, 
the  lapsed  share  was  claimed  by  the  next  of  kin.  A  brief 
was  given  Scott  for  him  to  consent  for  the  heir  at  law  on 

7 


98  CONDUCT  OUT  OF  COURT. 

the  licaring.  But  he  turned  through  the  books  and  pored 
over  the  question  until  he  became  convinced  that  the  share 
in  (question  was  to  be  regarded  as  real  estate,  and  therefore 
belonged  to  his  client.  The  case  came  on  at  the  Rolls 
bofore  Sir  Thomas  Sewell.  The  solicitor  who  had  delivered 
the  brief  was  told  by  the  young  lawyer  that  he  should  con- 
sent that  the  will  had  been  duly  executed,  but  that  he  must 
support  his  client's  chiim  to  the  share.  He  made  an  ear- 
nest effort,  which  shook  but  did  not  convince  Sir  Thomas, 
but  he  learned  of  a  compliment  paid  by  the  latter  to  the 
argument  after  his  adverse  decision.  As  good  luck  would 
have  it,  there  was  an  appeal  by  another  discontented  party, 
and  Scott  receiving  a  guinea  brief  to  consent  as  before,  he 
insisted  on  arguing  the  point  again.  In  spite  of  the  re- 
monstrance of  the  solicitor,  the  refusal  of  the  gutirdian  of 
the  client  to  increase  the  fee,  and  the  concurrence  of  the 
bar  in  the  ruling  of  Sir  Thomas  Sewell,  he  did  argue  it ; 
and  Lord  Thurlow  after  considering  for  three  days  decreed 
in  his  favor.  The  argument  was  published,  and,  as  an  old 
solicitor  remarked  to  him  just  after  it  was  made,  the  young 
lawyer  had  cut  his  bread  and  butter  for  life.  Some  time 
later  Scott  appeared  in  the  Chancellor's  Court  of  Lanca- 
shire to  argue  the  other  side  of  the  question.  Dunning 
(Lord  Ashburton)  told  him  that  he  would  not  hear  him  ; 
he  had  read  the  argument  just  mentioned  and  he  defied 
him  or  any  other  man  in  England  to  answer  it.  Surely 
such  a  failure  would  delight  a  lawyer  more  than  ordinarily 
to  win  a  case. 

§  138.  As  this  case  made  the  fortune  of  Scott,  so  did 
Erskine  likewise  make  his  fortune  in  his  first  effort  by  a 
brilliant  speech  upon  a  question  of  law.  But  we  nmst  re- 
mind our  pupil  that  cases  of  importance  which  turn  upon 


PREPARATION   OF   THE   LAW   OF  THE  CASE.     99 

a  contested  rule  of  law  as  compared  with  those  involving 
issues  of  fact  are  of  rare  occurrence. 

§  139.  And  yet  the  applicable  law  must  be  carefully 
attended  to  in  average  preparation.  If  you  draw  a  decla- 
ration which  the  defendant  may  admit  to  be  true  and  yet 
can  demonstrate  that  its  allegations  make  no  good  cause 
of  action,  his  demurrer  will  upset  you.  And  if  you  rely 
on  a  plea  which  the  plaintiff's  dcnmrrer  shows  to  be  bad 
as  a  legal  defence,  he  will  win.  Turn  from  the  pleadings 
and  consider  the  evidence.  Every  part  and  parcel  of  that 
has  to  run  the  gantlet  of  Greenleaf,  Stephen,  and  Whar- 
ton. The  law  not  only  prescribes  what  is  a  good  cause 
of  action  or  ground  of  defence,  but  it  also  settles  what 
evidence  is  to  be  admitted  and  what  excluded.  Every 
separate  sentence  in  the  answers  of  a  witness  under  ex- 
amination can  raise  a  question  under  the  law  of  evidence. 

§  140.  In  legal  preparation  you  commence  with  an  as- 
sumed rule  of  law,  proceed  from  that  to  another,  and  so 
on,  it  may  be  step  by  step,  through  many  more  before  you 
can  make  good  your  claim  to  the  desired  judgment  or  ver- 
dict. Therefore  the  aim  of  preparation  as  to  the  law  will 
be  that  you  make  no  misstep  in  the  whole  progress  ;  that 
you  plant  your  pleadings  and  evidence,  both  as  a  whole 
and  in  detail,  immovably  upon  a  rock  of  the  law.  It  is 
also  your  purpose,  as  part  and  parcel  of  this  task,  to  show 
that  your  adversary  has  in  his  pleadings  and  evidence  — 
either  in  one  or  in  both  —  failed  to  meet  your  case. 

§  141.  To  the  American  practitioner  the  law  exists  in 
three  great  departments.  Enumerated  in  the  order  of  the 
frequency  of  their  occurrence  in  practice,  they  are  State 
law,  general  law,  and  Federal  law.  The  State  and  Federal 
Constitutions,  statutes,  rules  of  court,  and  reports  are  the 


100        CONDUCT  OUT  OF  COURT. 

authorities  which  decide  questions  of  State  and  Federal 
hiw,  wliilc  the  general  law  authorities  are  Enghsli  text- 
writers,  statutes,  and  records  anterior  to  our  independence, 
and  the  entire  reports  of  all  English-speaking  lands.  In 
another  work  to  which  tliis  is  a  sequel,  we  have  taken 
pains  to  show  the  relation  of  these  different  divisions  to 
one  another,  to  point  out  how  they  are  to  be  mastered  and 
what  part  is  played  by  each  in  practice.^  We  need  only 
say  here  that  a  law  question  of  doubt  must  be  first  referred 
to  its  proper  department,  and  when  that  reference  is  made 
it  is  next  in  order  to  search  the  law-books  of  that  depart- 
n)ent  for  the  desired  answer.  It  is  a  conmion  experience 
that  a  case  presents  a  law  question  under  each  one  of  the 
three  departments.  We  must  also  suggest  that,  when  no 
rule  of  decision  can  be  found  in  the  books  mentioned,  the 
question  is  generally  decided  by  the  reason  of  the  general 
law,  —  a  subject  likewise  treated  by  us  at  length.^ 

§  142.  We  think  it  important  to  impress  upon  the  young 
practitioner  at  the  outset  that  it  is  only  in  exceptional 
instances  that  the  law  is  discovered  by  theorizing  and  rea- 
soning. He  should  abjure  the  conceit  that  he  can  forego 
enactments  and  reports  and  guess  at  a  rule  of  law  when- 
ever he  needs  to  know  what  it  is.  Let  him  always  exam- 
ine the  sources,  and  ordinarily  he  will  there  find  counsel 
which  commands  with  almost  axiomatic  force  either  to 
reject  or  accept  the  particular  proposition  under  considera- 
tion. He  should  take  a  lesson  from  the  editor  of  a  classic, 
to  whom  conjectural  emendation  is  not  permitted  until  a 
comparison  of  all  the  different  manuscripts  has  shown  that 
there  is,  as  to  the  particular  passage,  no  real  text  extant„ 

1  American  Law  Studies,  xxxvii.  d  seq.,  §§  823-827,  1002-1011. 

2  Ibid.,  §§  789,  790,  801  et  seq. 


PllEPARATIOX   OF   THE   LAW   OF   THE   CASE.     101 

Nearly  every  reader  will  impatiently  exclaim  in  rei)ly  to 
what  is  said  above  in  this  section,  "  Of  course,  everybody 
does  that  which  you  advise. "  But  it  is  our  conviction 
that  no  other  duty  is  more  neglected  in  practice  than  the 
one  which  we  are  now  trying  to  enforce.  Before  the 
magistrates  and  commissioners,  in  trials  in  all  the  smaller 
courts,  in  those  in  the  higher  ones  —  even  in  arguments  in 
courts  of  error  —  you  rarely  have  to  wait  long  without 
hearing  a  point  properly  decided  against  a  counsel  upon 
some  relevant  constitutional  or  statutory  provision  or  rule 
of  the  general  law,  which  seems  when  nt  is  cited  to  have 
been  known  to  everybody  else.  "  How  did  it  escape 
him  ?  "  the  looker  on  says  to  himself.  The  answer  is, 
that  a  large  proportion  of  both  young  and  old  lawyers 
never  bestir  themselves  over  the  real  questions  until  after 
their  cases  are  called  on. 

§  143.  Having  hinted  the  great  influence  of  the  law  from 
the  first  to  the  last  of  litigation  ;  having  glanced  at  the 
American  trinity,  that  is,  State  law.  Federal  law,  and  gen- 
eral law,  and  the  fact  that  every  legal  question  arises  under 
one  or  the  other  and  is  to  be  decided  by  its  peculiar  pro- 
visions ;  and  having  emphasized  the  duty  of  always  settling 
a  legal  proposition  by  consulting  the  books  for  yourself 
instead  of  waiting  for  them  to  be  shown  you  by  your  ad- 
versary or  the  court,  —  we  now  take  up  the  consideration 
of  the  ordinarily  occurring  legal  questions. 

§  1 44.  There  are  generally  three  classes  of  these  in  eases 
of  the  common  type.  We  begin  with  that  one  which  is 
logically,  and  nearly  always  practically,  the  first  in  impor- 
tance. We  may  state  it  in  general  terms  to  be.  What  is 
the  substantive  right  of  my  client  ?  We  will  illustrate. 
A  firm  of  merchants  have  delivered  goods  to  a  servant  for 


102  CONDUCT  OUT  OF  COURT. 

his  master,  and  tlie  latter  refuses  to  pay  for  the  goods  upon 
tlic  ground  tliat  lie  has  not  received  them  and  that  his  ser- 
vant did  not  have  authority  to  pledge  his  credit.  If  you 
find  tliat  the  merchants  can  prove  certain  acts  of  the 
master  noted  in  the  books  from  which  the  connnunity  may 
reasonably  infer  that  the  servant  had  the  authority  in  ques- 
tion, it  is  the  same  thing  in  law  as  if  the  servant  actually 
had  it,  altliough  it  may  be  true  that  the  master  expressly 
forbade  the  servant  from  making  the  particular  purchase  ; 
and  you  will  recover  against  the  master. 

Again,  suppose,  there  being  no  lineal  heirs,  that  an  estate 
is  to  be  distributed  among  the  collateral  heirs,  and  among 
the  claimants  there  are  children  of  a  deceased  brother  or 
sister  of  the  intestate.  Under  the  law  of  Georgia  you 
would  have  a  good  case  for  these  children,  for  they  rep- 
resent their  parent. 

In  the  first  of  the  supposed  cases  the  substantive  right 
of  the  merchant  is  to  have  the  fair  price  of  the  goods  from 
the  master,  and  in  the  second  it  is  that  of  the  children 
mentioned  to  divide  between  themselves  such  a  part  of  the 
estate  as  their  father  or  mother  would  receive  if  living. 

§  145.  We  have  had  you  to  be  counsel  for  the  plaintiffs 
in  the  two  cases  put.  We  will  now  place  you  on  the  other 
side  of  cases  which  are  similar  except  in  a  few  particulars. 
We  will  suppose,  in  the  first  case  put,  that  the  master  has 
given  notice  to  the  merchants  that  he  has  withdrawn  the 
authority  possessed  by  the  servant,  or  that  some  acts  have 
been  done  by  him  within  the  knowledge  of  the  merchants 
from  which  acts  the  law  implies  a  revocation  of  the  author- 
ity ;  and  in  the  second  case,  that  the  children  of  collateral 
heirs  other  than  brother  and  sister  are  claiming  to  repre- 
sent their  deceased  parent  in  the  distribution  of  an  intes- 


PREPARATION   OF   THE   LAW   OF   THE   CASE.     103 

tate's  estate  under  the  law  of  Georgia,  which  provides  that 
there  shall  be  no  such  representation.  In  both  these  you 
show  that  the  plaintiffs  are  not  entitled  in  law  to  the  sub- 
stantive rights  which  they  claim. 

§  14G.  By  contemplation  you  see  that  each  ease  in  which 
you  are  for  the  defendant  has  in  it  a  fact  of  importance, 
which  was  not  in  the  corresponding  case  where  we  sup- 
posed you  to  be  for  the  plaintiff.  These  illustrations  suffi- 
ciently explain  to  you  that  every  substantive  right  which  a 
party  may  claim  from  another  is  founded  upon  the  concur- 
rence of  certain  facts  and  the  non-existence  of  others. 
They  also  sliow  from  a  new  point  of  view  the  commanding 
necessity  of  the  practitioner's  beginning  the  investigation 
of  the  case  by  ascertaining  the  facts,  —  at  least  those  ma- 
terial ones  conferring  or  denying  a  legal  right  asserted  by 
action. 

But  the  special  lesson  which  we  would  have  these  illus- 
trations now  teach  is,  that  there  are  certain  rules  of  law 
which  give  the  substantive  rights  pointed  out  and  that  a 
particuhir  rule  is  to  be  well  studied  and  thoroughly  under- 
stood whenever  a  right  is  claimed  under  it.  The  real  test 
here  is,  Will  the  material  facts  relied  upon,  well  and  truly 
pleaded,  prevail  against  the  adversary's  demurrer  ? 

§  147.  We  have  feigned  cases  where  the  applicable  law 
is  easily  found.  But  to  the  practitioner  it  is  often  a  matter 
of  great  difficulty  to  determine  with  certainty  whether  a 
right  set  up  is  allowed  or  not  by  the  law.  The  relevant 
legal  provisions  may  be  of  ambiguous  meaning,  or  there 
may  be  none  at  all.  Whether  the  right  or  its  non-existence 
be  plain  or  doubtful,  it  is  necessary  for  the  lawyer  to  have 
a  clear  conception  of  the  governing  rules  of  law  and  to  be 
able  to  present  decisive  authority  or  to  give  satisfactory 


104         CONDUCT  OUT  OF  COURT. 

reasons  establisliing  the  rules  and  justifying  tlie  applieation 
lie  would  make  of  them.  When  he  can  support  the  right 
of  his  client  by  such  citations  and  arguments  as  will  con- 
^^nee  an  average  judge  his  preparation  upon  this  part  of 
the  case  is  in  a  measure  complete. 

§  148.  After  settling  that  the  right  of  the  plaintiff  or 
the  defence  is  maintainable  in  law,  the  proper  remedy  is 
next  to  be  considered.  Often  there  is  but  one.  But 
many  times  there  is  a  choice.  Thus  in  Georgia  it  is  ordi- 
narily better  to  use  the  fictitious  action  of  ejectment  than 
the  statutory  short  form,  which  has  no  substitute  for  sev- 
eral demises.  The  measure  of  damages  may  be  larger  in 
one  action  than  in  another,  as  for  instance  the  highest 
value  of  personal  property  at  any  time  between  its  tortious 
conversion  and  the  trial  is  recoverable  in  trover,^  while  the 
plaintiff's  verdict  would  be  smaller  if  he  resorted  to  an 
action  ex  contractu,  as  is  often  permitted  to  him.  Some 
cases  can  be  brought  in,  and  others  cati  be  removed  to,  a 
Federal  court,  where  you  can  have  the  benefit  of  more  fa- 
vorable rules  of  decision  on  some  subject  of  general  juris- 
prudence involved  than  those  which  prevail  in  the  courts 
of  the  State.  If  you  can  appeal  to  equity,  you  may  there 
find  a  peculiar  procedure  helping  you  and  a  relief  which 
you  cannot  have  at  law. 

§  149.  The  law  is  a  well-stored  armory.  No  one  who 
begins  a  suit  can  ever  anticipate  precisely  what  action 
lying  in  wait  for  him  somewhere  he  may  provoke.  It  is 
not  germane  to  our  purpose,  in  search  as  we  are  of  only 
the  most  general  principles,  to  discuss  in  detail  the  whole 
series  of  injunctions,  cross  suits,  counter  claims,  procuring 
the  appointment  of  a  receiver,  and  other  remedies,  which 

1  Code  of  Georgia,  §  3077. 


PREPARATION   OB'   THE   LAW  OF   THE   CASE.     105 

often  turn  a  confident  attack  into  a  hard-pressed  defence, 
or  drive  a  party  into  other  straits.  This  belongs  rather  to 
the  subject  of  local  practice  tiiau  to  the  proper  treatment 
of  the  leading  principles  of  conduct  of  litigation.  We  can 
only  say  to  our  readers  that,  premising  for  him,  as  we  have, 
a  knowledge  of  the  law  of  procedure,  he  must  ever  be 
asking  himself  the  question.  Can  I  better  myself  with  a 
change  of  forum,  or  a  new  remedy,  or  some  other  addition 
to  my  attack  or  defence  ? 

§  150.  We  will  now  illustrate  the  doctrine  of  the  last 
sections  by  a  series  of  examples. 

I  once  noted  the  conduct  of  an  action  by  the  heirs  at 
law  of  an  intestate  which  involved  the  actings  and  doings 
of  the  administrator  for  a  long  while.  It  had  been  brought 
under  the  statute  upon  the  bond,  without  the  establish- 
ment of  a  devastavit  in  equity.  The  items  were  multifa- 
rious ;  and  the  fact  that  the  administration  was  active 
during  the  war  had  added  to  the  complication  of  the  ac- 
counts, because  of  the  large  displacement  of  the  assets  by 
conversions  into  Confederate  currency,  the  course  of  which 
was  not  narrated  in  the  annual  returns  ;  this  currency 
having  been  treated  as  good  money  by  the  administrator, 
as  was  usually  the  case  in  most  of  the  transactions  of  the 
time.  The  plaintiffs  made  good  their  claims  to  ten  or 
twelve  thousand  dollars,  but  they  recovered  a  very  much 
smaller  amount.  It  w^as  always  clear  to  me  that,  had  they 
obtained  the  appointment  of  a  suitable  person  as  auditor 
under  the  local  statute,  he  would  have  reported  for  them 
the  full  amount  to  which  they  were  entitled  and  the  de- 
fendants would  have  found  it  difficult  in  the  extreme  to 
overcome  such  a  report.  As  it  was,  the  jury  could  not 
see  their  way  through  the  complexity  of  the  proofs,  and 


106  CONDUCT   OUT   OF   COURT. 

tliey  found  a  vcnlict  wliicli  was  not  so  strongly  against  the 
Avciglit  of  the  evidence  as  to  command  a  new  trial.  The 
great  poi)uIarity  of  some  of  the  administrator's  sureties, 
who  were  the  only  solvent  defendants,  should  have  sug- 
gested to  the  plaintiffs  the  good  policy  of  leaving  a  jury  in 
tlie  case  the  least  discretion  possible. 

§  151.  Under  the  Code  of  Georgia,  —  which  went  into 
operation  January  1,  1863,  —  if  the  complainant  in  a  bill 
in  equity  waives  discovery,  the  answer  of  the  defendant  is 
not  evidence  for  him.  Now  and  then,  when  you  hold  a 
good  hand  of  invincible  evidence,  it  is  the  better  policy  to 
call  for  discovery,  calculating  upon  the  crushing  effect  of 
overcoming  the  answer  in  case  it  is  adverse.  But  I  have 
observed  that  the  defendant  sometimes  prevails  because 
of  the  omission  by  the  complainant  to  insert  the  waiver ; 
and  as  the  courts  have  established  the  rule  that  the  waiver 
cannot  be  made  by  amendment  after  the  answer  is  in,  it  is 
great  supineness  in  the  defendant  to  delay  its  filing  and 
thereby  give  his  adversary  opportunity  to  make  the  amend- 
ment in  time. 

§  152.  It  is  often  a  delicate  question  whether  you  shall 
stand  on  the  defensive  or  resort  to  a  possible  aggressive. 
Thus  you  may  obtain  an  injunction  of  the  plaintiff  and 
force  him  to  try  the  case  in  equity,  where  he  is  turned  into 
a  defendant.  An  instinctive  perception  of  the  common 
feelings  must  be  your  guide  in  deciding  the  question.  I 
can  only  say,  with  much  diffidence,  that  judges  and  juries 
generally  sympathize  with  a  well-considered  and  bold  as- 
sault upon  fraud  and  all  intended  injuries  of  a  serious  kind, 
while  in  many  cases  they  prefer  to  see  the  possessor  merely 
defend  his  claim  without  invasion.  To  neglect  taking  the 
initiative  where  it  will  help  you,  and  to  assume  it  when  it 


PREPARATION  OF  THE  LAW  OF  THE  CASE.  107 

appears  to  be  more  than  tlic  proprieties  of  your  case  de- 
mand, are  both  blunders  which  shoukl  be  avoided.  We 
will  note  at  another  place  the  usual  advantages  of  holding 
the  initiative. 

§  15:3.  The  following  will  show  the  use  which  a  cross 
prosecution  may  sometimes  be  made  to  serve.  A,  who 
was  a  member  of  a  popular  and  influential  family,  was 
pressing  hard  against  B,  a  man  almost  unknown  in  the 
county,  a  charge  of  assault  and  battery.  By  the  advice 
of  his  counsel,  B  obtained  from  the  grand  jury,  which  had 
returned  an  indictment  for  the  charge  mentioned,  another 
indictment  charging  A  with  shooting  at  him,  —  an  offVnicc 
under  the  local  statute  much  more  serious  than  the  other. 
The  shooting  and  the  battery  were  parts  of  the  same  fight, 
which  was  without  justification  on  either  side.  A  plea  of 
guilty  was  promptly  entered  to  the  indictment  for  the  lesser 
offence,  and,  B's  counsel  appearing  for  the  State  and  con- 
tending with  vigor,  A  was  convicted.  The  counsel  then 
proposed  to  A  and  his  friends  that  it  was  now  their  policy 
to  join  with  him  in  an  application  to  the  court  to  lighten 
the  punishment  of  both  ;  which  proposal  was  perforce  ac- 
cepted. The  court,  duly  considering  the  weighty  represen- 
tations procured  from  the  grand  jury  and  other  persons  of 
standing  and  reputation  by  the  influence  of  A's  relatives, 
and  also  the  more  potent  appeals  of  the  two  prosecutors, 
visited  each  defendant  with  the  smallest  penalty  which 
he  could  inflict  under  the  law.  This  was  substantial  vic- 
tory for  B. 

§  154.  Our  last  example  here  enforces  the  importance 
of  rightly  choosing  your  forum  when  you  have  a  choice. 

A  suit  was  brought  upon  a  guardian's  bond  in  the  county 
where  the  surety  resided.     The   principal,  who  lived  in 


108        CONDUCT  OUT  OF  COURT. 

another  county,  was  utterly  insolvent.  On  the  trial,  the 
plaintiff  appeared  to  have  made  out  his  ease  and  to  have 
overcome  with  liis  evidence  that  supporting  rather  a  flimsy 
defence.  But  there  was  a  verdict  for  the  defendant,  which 
could  not  be  set  aside,  as  it  was  held  not  to  be  so  decidedly 
counter  to  the  evidence  as  to  require  a  new  trial.  The 
action  should  have  been  brought  in  the  county  of  the 
guardian,  as  it  could  have  been  under  the  local  law.  The 
plaintiff  would  then  have  had  the  surety  away  from  home 
and  where  his  popularity  in  the  vicinage  could  do  him  no 
good,  and  where  too  he  would  have  been  burdened  with 
the  odium  of  the  faithless  guardian.  Besides,  in  that 
county  the  guardian,  who  was  the  main  M'itness  for  the 
defence,  would  have  testified  from  the  stand.  As  it  was, 
his  testimony  had  been  taken  by  commission,  which  the 
statute  authorized  in  the  case  of  those  not  residing  in  the 
county  of  the  suit.  A  rigid  cross-examination  viva  voce 
would  have  destroyed  the  credit  of  the  witness.  But  the 
law  of  the  State  permitted  only  a  list  of  set  cross-interi-og- 
atories  to  be  addressed  to  those  who  testified  before  a  com- 
mission. The  plaintiff  threw  away  two  great  advantages 
by  suing  in  the  WTong  county,  and  thus  lost  the  verdict 
which  he  would  otherwise  have  probably  won.  When 
the  surety's  hand  was  disclosed  by  the  service  of  his 
interrogatories  on  the  plaintiff,  the  action  should  have 
been  dismissed  and  another  brought  in  the  county  of  the 
guardian. 

We  hint  that  there  are  many  considerations  other  than 
those  mentioned  above  which  guide  you  to  the  selection  of 
your  forum.  The  leaning  of  a  judge  in  cases  of  special 
character,  or  his  known  convictions  as  to  certain  legal 
questions ;  the  advantage  of  having  your  timid  and  shaky 


PREPARATION    OF   THE    LAW   OF   THE   CASE.     109 

witnesses  examined  by  commission  and  of  having  your 
others  who  will  bear  themselves  well  under  oral  examina- 
tion to  testify  from  the  stand,  and  the  further  advantage 
of  dispensing  with  the  presence  of  the  more  effective  of 
the  adversary's  witnesses  or  of  forcing  into  court  those 
whom  you  can  demolish  or  turn  into  allies  by  a  cross- 
examination  ;  avoiding  or  making  use  of  the  prejudices 
of  the  community  or  of  its  ftimiliarity  with  the  transac- 
tion in  question  ;  —  these  are  not  all  the  reasons  for  pre- 
ferring a  particular  court  which  practice  will  teach  you 
after  a  while. 

§  155.  As  we  close  this  division  we  sum  up  briefly,  and 
say  to  our  student,  that,  after  he  has  satisfied  himself  that 
the  right  asserted,  or  the  defence  set  up  by  his  client,  is 
maintainable  in  law  upon  the  probable  facts,  he  should 
take  the  remedy  which  combines  all  or  as  many  as  may  be 
of  the  following  qualities  :  — 

1.  It  should  stand  against  demurrer  or  legal  objection 
of  every  kind. 

2.  It  should  make  available  all  of  the  client's  material 
points. 

3.  It  should  be  so  managed  as  not  to  contribute  any 
help  to  the  other  side. 

These  three  may  be  termed  the  strictly  legal  essentials. 

4.  The  remedy  must  also,  as  far  as  it  can  be  made  to  do 
it,  include  all  of  what  we  may  call  the  non-legal  resources 
of  the  case  ;  such  as  the  most  favorable  forum  and  vicinity, 
the  alliance  of  influential  parties,  and  many  other  particu- 
lars which  will  suggest  themselves  to  the  trained  practi- 
tioner wherever  they  exist. 

All  of  good  according  to  the  foregoing  euumeration 
which  is  certain  or  achievable  must  be  considered,  and 


no  CONDUCT  OUT  OF   COUllT. 

then  the  praetitioiier  must  follow  the  maxim,  "  Prout  ergo 
expedit,  ita  quisquo  vel  hauc  actionem  vel  illam  eligore 
debet."  1 

§  15G.  The  substantive  right  demanded,  or  its  denial  by 
him  of  whom  the  demand  is  made,  is  to  be  first  attended 
to;  then  the  remedy  ;  and  next  comes,  as  the  last  and  third 
division  of  the  more  prominent  essentials  of  legal  preparor 
tion,  the  competency  of  the  expected  evidence.  Of  course, 
where  it  is  voluminous  the  whole  cannot  be  anticipated, 
and  therefore  there  cannot  be  anticipated  all  of  the  legal 
questions  which  may  arise  upon  it.  But  you  will  know 
that  on  which  you  rely  to  make  out  a  prima  facie  support 
of  your  main  points,  and  also  much  that  will  be  jjroduced 
against  them.  The  important  details  of  arranging  the 
proofs  so  that  they  will  sustain  your  pleadings  and  impugn 
those  of  the  adversary,  do  not  concern  us  here.  It  is  only 
proper  to  treat  legal  points.  You  should  carefully  guard 
yourself  against  relying  upon  a  proof  which  can  be  shown 
to  be  incompetent,  and  also  stand  prepared  promptly  to 
challenge  every  illegal  one  of  the  other  side  that  you  can- 
not disarm  or  turn  into  a  reinforcement ;  and  divining 
as  well  as  you  can  the  objections  which  may  be  urged  to 
your  testimony  and  those  which  it  will  be  your  interest  to 
make,  you  should  be  furnished  with  the  right  authorities 
and  arguments. 

The  duty  mentioned  in  this  section,  though  it  is  palpa- 
ble to  even  the  younger  bar,  is  too  much  neglected  by  tried 
and  experienced  practitioners.  From  constant  use  in  all 
sorts  of  business  and  upon  every  side  of  the  court,  we  as- 
similate the  general  principles  of  evidence  so  thoroughly 

^  lust.  4.  7.  5:  "The  actiou  wliich  is  tlie  more  advantageous  should 
always  be  chosen." 


PREPARATION   OF   THE   LAW  OF   THE   CASE.     Ill 

that  we  fancy  wc  can  satisfactorily  liaiullu  any  question 
under  this  branch  of  the  hiw  at  a  moment's  notice.  This 
often  leads  us  to  buikl  upon  an  inadmissible  proof,  to 
overlook  sucli  of  the  adversary,  and  to  make  unmaintain- 
able objections.  The  counsel  should  frequently  turn  over 
the  proofs  in  his  mind  —  both  his  own  and  those  which  he 
has  reason  to  think  will  be  offered  on  the  other  side  —  in 
order  to  foresee  clearly  what  need  he  may  have  for  the 
rules  of  evidence  in  defending  his  positions  or  assailing  the 
opposite. 

§  157.  We  have  thus  run  over  the  entire  course  of 
legal  preparation.  There  remain,  however,  some  general 
reflections  to  be  made  which  belong  alike  to  all  the  three 
divisions  which  we  have  marked  off. 

We  begin  with  the  three  kinds  of  law  which  the  la'W'yer 
encounters  at  every  stage. 

The  first  is  that  which  is  certainly  against  or  counter  to 
him. 

The  second  is  that  upon  which  he  may  take  position 
with  unerring  certainty.  It  may  be  the  unmistakable 
command  of  an  enactment  or  an  harmonious  current  of 
decisions  and  authorities. 

And  the  tliird  kind  is  a  considerable  domain,  lessen- 
ing slowly  in  size  every  year,  but  which  will  never  wholly 
disappear ;  and  that  is  where  the  law  is  really  doubtful. 

§  158.  No  prudent  lawyer  will  throw  himself  against 
law  of  the  first  kind.  He  will  avoid  it  and  steer  around 
it.  And  of  course  he  will  throw  away  no  advantages 
under  the  second  kind.  Law  of  the  third  kind  occurs  less 
frequently  than  either  of  the  other  two,  but  it  does  meet 
the  practitioner  so  often  that  he  should  be  educated  in  the 
proper  modes  of  dealing  with  it. 


112  CONDUCT   OUT   OF   COUilT. 

The  minds  of  incu  are  so  different  that  as  a  consequence 
we  have  jar  and  conflict  in  opinions  of  the  profession  and 
in  judicial  decisions.  A  judge  sometimes  reverses  himself. 
The  rulings  of  previous  courts  are  now  and  tlien  overset 
by  those  of  tlieir  successors.  Tnere  are  many  uncertainties 
inherent  in  the  law.  Language,  eitlier  in  enactments  or 
from  tlie  mouths  of  judges,  is  obscure  or  of  double  mean- 
ing. Tiie  subject  may  bo  new,  and  we  see  that  it  must  be 
left  to  the  future  for  further  development.  Some  particu- 
lar doctrine  assumed  by  courts  and  text-writers,  and  which 
is  beyond  the  sure  application  of  stare  decisis,  appears  to 
be  so  unreasonable  that  we  may  expect  its  modification 
when  sharply  questioned.  Upon  all  doubtful  law  which 
is  relevant  to  the  case  the  counsel  should  take  chances 
with  judgment.  He  should  give  his  client  opportunity  of 
winning.  But  he  must  avoid  risking  too  much  on  uncer- 
tainty. If  he  can,  he  should  have  —  to  use  a  colloquial- 
ism —  another  string  to  his  bow. 

§  159.  As  a  continuation  of  the  last  section  we  must 
note  the  cases  which  are  without  precedent.  We  need 
not  repeat  what  we  have  said  elsewhere  upon  the  appeal 
that  must  sometimes  be  made  to  principle.^  But  we  must 
remind  the  student  that  he  will  find  judges  extremely 
averse  to  making  avoiredly  new  rulings.  He  must  bear 
in  mind  that  this  almost  humorous  description  of  Sir 
H.  Maine  is  but  the  truth  :  — 

"  With  respect  to  that  great  portion  of  our  legal  system 
which  is  enshrined  in  cases  and  recorded  in  law  reports, 
we  habitually  employ  a  double  language,  and  entertain  as 
it  would  appear  a  double  and  inconsistent  set  of  ideas. 
When  a  group  of  facts  comes  before  an  English  court  for 

1  American  Law  Studies,  §§  801-809. 


riiEPARATlON    UK   THE   LAW    OF   THE   CASE.     113 

adjudication,  the  whole  course  of  the  discussion  between 
the  judge  and  the  ad\\)cate  assumes  that  no  question  is 
or  can  be  raised  which  will  call  for  the  application  of  any 
principles  but  old  ones,  or  of  any  distinctions  but  such  as 
have  long  since  been  allowed,  it  is  taken  absolutely  for 
granted  tiuit  there  is  somewhere  a  rule  of  known  law 
which  will  cyver  the  facts  of  the  dispute  now  litigated,  and 
that  if  such  a  rule  be  not  discovered  it  is  oidy  that  the 
necessary  patience,  knowledge,  or  acumen  is  not  forthcom- 
ing to  detect  it.  Yet  the  moment  the  judgment  has  been 
rendered  and  reported,  w^e  slide  unconsciously  or  unavow- 
edly  into  a  new  language  and  a  new  train  of  thought. 
We  now  admit  that  the  new  decision  has  modified  the 


law. 


1 


§  160.  You  must  not,  therefore,  if  you  can  avoid  it, 
shock  the  sensitive  conservatism  of  a  judge  by  asking  for 
an  innovation  as  such.  It  should  if  possible  be  demanded 
as  an  old  principle.  Such  a  demand  is  generally  permis- 
sible, as  even  the  latest  doctrines  and  measures  are  to  be 
justified  by  long-obtaining  maxims  of  expediency  and  right. 
But  sometimes  all  pretence  must  perforce  be  throwni  aside, 
for  the  novelty  of  your  position  is  too  conspicuous  for  con- 
cealment. Here  the  lav/yer,  if  he  would  succeed,  must  be 
able  to  show  that  a  great  interest  is  at  stake,  and  come 
beforp  the  court  fully  furnislied  with  resistless  demonstrar 
tion.  He  must  have  besides  an  infallible  presentiment 
that  the  judicial  mind,  prepared  by  previous  reflection  or 
discussion  and  the  calls  of  the  community,  is  ready  to  ad- 
vance courageously,  before  he  can  safely  rest  his  case  upon 
the  chance  of  such  a  decision  as  he  now  seeks.  Let  him 
have  other  and  more  certain  positions  if  he  can. 

1  Ancient  Law,  31  (London,  1S70). 

8 


114  CONDUCT  OUT  OF   COURT. 

§  1()1.  The  bum  lawyer  exhibits  in  liis  preparation  a 
growing  tendency  to  found  his  aggressive  or  defensive  com- 
binations the  njore  circumspectly  on  sound  legal  ground. 
The  wary  veteran  of  forensic  battles  is  all  the  while  sus- 
picious that  his  assumptions  will  be  sliown  to  contravene 
governing  authority,  and  this  suspicion  keeps  him  from 
sleeping  in  a  false  security.  Ilis  avoidance^ of  bad  law 
becomes  instinctive.  And  he  shows  another  growing  ten- 
dency. He  is  too  busy  for  nmch  laborious  thought.  He 
is  a  man  of  action.  Often  he  cannot  give  legal  questions 
in  his  case  a  thorough  examination  before  he  must  prepare 
to  argue  them  in  the  court  of  last  resort.  This  constraint 
begets  in  him  a  wonderful  facility  of  turning  his  cases 
around  struggles  upon  uncertain  law  questions.  He  never 
engages  with  his  adversary  for  the  mere  love  of  controversy. 
He  must  first  see  either  that  controversy  is  inevitable,  or 
that  he  can  anticipate  with  much  probability  some  justify- 
ing advantage.  Legal  questions,  though  easy  Avhcn  argued 
for  us  by  able  lawyers,  learned  judges,  and  gifted  text- 
writerc,  are  not  always  easy  to  decide  before  such  argu- 
ment. The  really  easy  questions  are  not  seriously  mooted. 
When  good  lawyers  divide  on  law  points  and  resolve  to 
argue  them  in  earnest,  there  is  generally  difficulty.  The 
sifting  and  analysis  necessary  to  detect  the  cardinal  propo- 
sitions is  often  an  Herculean  labor.  The  wary  practitioner 
fearing  gins  and  snares,  will,  if  he  can  do  it  with  safety, 
at  once  shun  a  question  which  he  has  not  time  to  settle, 
and  press  his  adversary  upon  ground  better  known. 

§  1G2.  In  the  selection  of  the  points  upon  which  he  is 
to  stand  or  fall,  he  must  use  good  sense  and  judgment. 
As  ho  becomes  older  he  refrains  more  and  more  from  what 
may  be  termed  over-refining.     The  law  is  not  of  the  family 


PREPARATION  OF  THE  LAW  OF  THE  CASE.  115 

of  the  exact  scieuces.  It  lias  a  favorite  maxim,  that  it 
cares  not  for  small  things.  The  plain  men  in  the  jury-box 
are  struck  with  prominences  and  appreciable  superiorities 
in  the  evidence.  They  measure  roughly  and  seek  not  to 
be  finically  precise.  The  judge  is  also  practical.  His 
knowledge  of  the  law  is  in  some  sort  scientific ;  but  his 
peculiar  science  teaches  him  that  he  must  not  be  over- 
logical  and  he  nmst  not  regard  infinitesimals  and  exacti- 
tudes. He  will  often  decide  right  and  be  as  unable  to 
give  a  good  reason  as  a  woman  is  for  her  right  decision. 
He  gives  correct  judgments,  not  "  laboriously,  but  luckily.'' 

§  163.  We  have  thus  outlined  nearly  the  whole  tract 
of  legal  preparation.  Many  disputes  will  arise  collaterally 
during  the  trial  or  hearing,  Avithout  warning,  and  which 
therefore  cannot.be  prepared  for.  To  manage  these  rightly 
you  must  needs  rely  upon  your  mastery  of  common  princi- 
ples and  the  training  of  experience  in  analysis,  decision,  and 
argument ;  and  especially  upon  your  familiarity  with  the 
facts  and  the  needs  of  your  case.  The  legitimate  objects 
are  what  you  can  anticipate,  —  the  maintenance  of  your 
case  as  pleaded,  the  support  or  attack  of  the  remedy  and 
also  of  the  expected  evidence.  The  authorities  settling 
these  different  points  are  to  be  collated  and  considered 
well. 

The  duty  just  noted  is  much  slighted.  You  will  see 
every  day  that  even  lawyers  of  fair  standing  lose  cases 
which  are  counter  to  the  State  statutes  and  decisions,  to 
say  nothing  of  those  where  they  blunder  as  to  the  general 
or  Federal  law.  You  will  also  find  that  many  where  they 
win  have  overlooked  the  really  decisive  authority.  A 
better  preparation  would  have  avoi<led  contesting  unten- 
able ground  or  diminished  the  peril  to  a  good  cause. 


116  CONDUCT   OUT   OF   COUllT. 

§  164.  The  vital  points  which  you  may  reasonably  ex. 
pect  to  be  controverted  arc  your  especial  care.  As  to 
these  you  are  to  be  as  impregnable  in  defeiico  or  resistless 
in  attack  as  possible.  Nearly  all  of  these  —  I  should  say 
seventy-five  per  cent  of  them  at  least  —  arc  easy,  requiring 
only  a  little  attention  bestowed  in  due  time.  The  remain- 
ing ones  give  trouble.  Here  you  must  avoid  self-deception. 
Do  not  impose  upon  yourself  with  over-logical  views.  You 
will  generally  be  profited  by  conference  with  your  brethren. 
They  may  not  cite  a  relevant  authority  or  advance  a  deci- 
sive reason,  but  they  will  in  their  concurrence  indicate  an 
instinct  or  tendency  of  the  i^rofessional  mind  that  is  the 
staple  out  of  which  legal  doctrine  largely  comes.  Even  a 
hasty  opinion  of  the  average  bar  —  not  that  of  one  lawyer 
—  is  entitled  to  respect.  If  it  does  not  point  tlie  way  to 
the  truth,  it  may  disclose  a  difficulty  which  when  fore- 
warned you  can  remove.  But  when  the  bar  differ  there 
is  usually  difficulty,  and  here  you  can  hardly  ever  be  more 
than  falsely  confident. 

§  165.  We  leave  this  part  of  tlic  subject  by  saying  that 
the  general  aim  of  legal  preparation  is  that  you  may  be 
safe  on  the  turning-points  as  to  the  right  claimed,  the 
remedy  and  evidence,  and  be  able  to  get  the  approval 
of  the  court. 

§  166.  The  pleadings  do  not  require  the  attention  that 
they  once  did.  They  become  less  and  less  artificial  in 
England  and  all  over  America.  It  nmst  however  be  re- 
membered that,  while  the  privilege  of  amendment  saves 
nearly  all  bad  pleading,  the  addition  of  material  allegations 
by  the  exercise  of  the  privilege  will  generally  surprise  the 
adversary,  and  he  must  be  allowed  sufficient  time  to  meet 
the  new  matter.     You  will  then  hardly  ever  be  able  to 


PREPARATION   OF  THE  LAW  OF  THE  CASE.    117 

bring  him  to  tr}'  before  the  next  term.  It  is  often  of  the 
utmost  consequenee  to  coeree  a  trial ;  and  the  insuffieieney 
of  your  deehxration  or  plea  may  h)se  a  gohlen  opportunity. 
Let  your  pleadings  be  neat,  brief,  lueid,  and  of  adequate 
fulness,  making  sueh  a  case  that  you  will  not  be  driven 
into  an  amendment  or  be  deprived  of  a  triumph  by  an 
arrest  of  judgment. 

Cases  which  are  out  of  the  usual  line  of  precedents  some- 
times require  great  care.  You  should  remember  that  to 
plead  a  difficult  cause  well  is  often  to  win  it,  communicat- 
ing a  mastery,  as  it  does,  which  is  to  be  had  in  no  other 
way.  Occasionally  you  must  plead  ingeniously  and  deli- 
cately in  order  to  cover  a  weak  point  by  a  show  either  of 
unconcern  or  of  great  strength.  There  are  ruses  of  vague- 
ness, double  meaning,  and  sham,  of  which  we  see  wary 
practitioners  now  and  then  make  good  use.  And  try  to 
foresee  the  amendments  of  your  adversary,  so  that  when 
they  are  made  you  will  have  no  need  to  ask  for  delay. 

§  167.  There  are  demurrers  which  are  of  only  dilatory 
effect,  and  they  may  help  you  when  it  is  your  interest  to 
balk  a  hotly  pushing  antagonist.  There  are  others  which 
rout  and  destroy  ;  as,  for  instance,  when  your  client  is  in- 
dicted under  a  statute  whicli  you  can  show  to  be  unconsti- 
tutional. Your  own  wit  will  instruct  you  how  to  avail 
yourself  of  both  kinds,  and  prepare  them  properly. 


118  COxXDUCT  OUT   OF   COURT. 


CHAPTER    IV. 

OTHER  PARTICULARS  OF  PREPARATION. 

§  1()8.  We  do  not  devote  a  separate  chapter  to  what  in 
our  Introduction  vrc  classed  as  the  third  element  of  litiga- 
tion and  developed  at  considerable  length.^  Law  and  fact 
are  generally  the  staple  of  the  case,  while  the  other  ele- 
ment is  uncertain  in  occurrence  and  quantity,  and  when  it 
is  present  with  much  influence  it  is  for  the  most  part  as 
an  addition  of  coloring:  and  weight.  The  more  common 
examples  of  the  emotional  excitement  to  which  the  lawyer 
must  attend  in  his  preparation  are  friendly  and  hostile 
prejudices.  The  favor  which  the  locality  will  generally 
shoAV  a  resident,  and  the  opposition  that  people  living  at  a 
distance  who  contend  with  him  will  call  forth ;  the  popu- 
larity of  women,  and  the  unpopularity  of  railway  and 
insurance  companies ;  the  attitude  of  different  races,  polit- 
ical parties,  religious  denominations,  secret  societies,  and 
many  divisions  of  the  community  which  we  have  not  space 
to  metition,  towards  their  own  members  and  those  of 
the  others ;  the  hearty  unquestioning  acceptance  by  the 
multitude  of  certain  views  and  notions  upon  common 
subjects,  and  their  gushing  approval  or  disapproval  of  par- 
ticular acts ;  —  these  are  instances.  It  is  to  be  noted  that 
wherever  the  family  relations  are  in  any  ^vise  involved, 
1  Ante,  §§  H-19. 


OTHER  PARTICULARS   OF   PREPARATION.      119 

jurors  generally  and  jiulges  often  can  look  through  only  a 
medium  of  inveterate  sentiment.  It  needs  not  to  go  be- 
yond this  and  try  the  vain  task  of  exhausting  the  causes 
which  set  passion  or  feeling  in  active  play.  But  we  must 
suggest  that  the  lawyer  has  to  anticii)ate  in  every  case  the 
etFect  whicii  the  revelation  of  his  facts  will  work  on  the 
likes  and  dislikes  of  the  judge  and  jury.  To  be  a  prophet 
here  postulates  a  good  natural  gift  of  discernment  into  the 
heart  of  man  and  much  professional  experience.  We  ob- 
serve that  many  of  the  bar  calculate  that  every  issue  of 
law  or  fact  will  be  weighed  always  in  cold  blood,  wiiile  a 
still  greater  number  often  make  false  appeals  to  feeling 
with  their  evidence  and  speech.  The  consummate  hiAvyer 
rarely  falls  into  an  error  of  omission  or  commission  in  this 
matter,  eitlier  in  his  preparation  or  during  the  trial. 

§  169.  It  is  a  peculiarity  of  modern  development  that 
the  advocate,  whether  po})ular,  parliamentary,  or  forensic, 
does  not  aim  as  consciously  to  stir  the  passions  as  was  the 
wont  in  the  olden  time.  Tliis  is  the  only  material  respect 
■in  which  the  orations  of  Cicero  would  be  out  of  place  in 
our  courts.  When  the  speaker  discloses  by  his  action  that 
he  has  premeditated  pathos  or  invective,  or  that  he  has 
executed  a  stratagem  to  excite  favor  or  hostility,  and  he 
feels  that  his  cause  depends  upon  the  use  of  such  means, 
we  arc  repelled  at  once.  The  moderns  strive  more  ear- 
nestly than  did  tlie  men  of  the  classical  days  to  subordinate 
the  feelings  to  the  judgment.  Of  course  we  can  never 
accomplish  this  to  the  full,  but  we  have  attained  the  point 
where  we  but  seldom  consciously  give  the  feelings  the  lead. 
They  arc  to  be  evoked  without  apparent  design,  or,  wluit 
is  still  more  efficacious,  as  dictates  of  the  judgment.  To 
the  great  mass  of  mankind  their  prejudices  and  emotional 


1-20  CONDUCT   OUT   OF   COURT. 

impulses  seem  to  be  their  convictions.  When  the  lawyer 
would  break  their  force  he  must  make  them  show  their 
real  nature,  but  he  is  to  keep  it  back  when  he  would  iiavc 
in  them  reliable  allies. 

§  170.  Many  times  the  temper  and  leaning  of  the  com- 
munity are  so  djcided  that  tlie  fact  must  be  recognized  in 
preparation.  A  woman  was  litigating  with  the  executor 
of  her  deceased  husband  upon  a  large  claim  to  which  there 
were  clearly  two  sides  on  the  facts.  She  and  her  husband 
had  each  several  adult  children  by  a  former  marriage,  but 
there  had  been  no  fruit  of  their  own.  The  children  of 
the  husband  lived  in  a  distant  part  of  the  State,  while  the 
widow  with  her  children  had  long  lived  in  the  county  of 
the  forum.  While  she  was  alive  her  case  was  exceedingly 
popular,  and  the  counsel  for  the  executor  had  avoided  a 
trial.  She  was  old,  and  had  for  years  been  in  feeble  health. 
She  died,  and,  presto  !  the  case  changed  sides.  Her  chil- 
dren, thougli  residents,  as  against  his  non-resident  children 
somehow  could  not  hold  the  place  of  their  mother,  and 
they  were  regarded  as  strangers.  The  widow  of  the  de-- 
ceased  could  demand  his  bounty,  while  her  children  could 
not.  It  was  really  no  question  of  bounty,  but  the  im- 
pulses of  the  people  made  it  such.  And  thus  in  the  case 
one  natui'al  bias  had  displaced  another.  Of  course  as  re- 
gards preparation  the  plaintiff's  laA\7er  would  be  in  haste 
to  complete  his  readiness  for  trial  and  to  try  before  the 
death  of  his  client  if  possible,  while  the  adversary  would 
find  cause  for  waiting  if  he  could. 

§  171.  We  give  another  example.  The  statute  of  lim- 
itations has  lost  almost  all  of  its  former  odium  as  a  de- 
fence. And  courts  become  more  prone  to  disallow  old 
claims  even  when  they  are  not  barred  by  the  statute.     A 


OTHER  PARTICULARS   OF   PREPARATION.     121 

purchaser  of  the  reversioner's  estate  had  brought  ejectment 
against  a  lessee  just  after  the  exi)iration  of  the  term  of 
twenty  years.  Tliere  was  some  show  by  the  defen(Uint 
that  the  alleged  lease  had  never  been  made  and  nmch 
more  of  outstanding  title.  The  plaintiff  proved  that  the 
written  lease  he  alleged  had  been  lost,  and  his  evidence  of 
the  contents  and  of  his  title  was  superior  to  that  of  the 
defendant.  But  he  lost  the  verdict  by  failing  to  impress 
upon  the  jury  that  he  could  not  sue  earlier  than  he  did 
because  of  the  lease.  As  he  made  his  only  effort  against 
the  ontstanding  title  set  up,  the  jury,  not  being  enlightened 
on  the  other  point,  felt  that  the  plaintiff  had  slumbered 
over  his  rights  long  enough  to  forfeit  them.  Xow  do  not 
exclaim,  What  a  stupid  jury !  They  were  intelligent  and 
honest  laymen,  though  not  good  laAvyers.  They  did  know 
that  it  was  the  law  of  the  State  that  twenty  years'  posses- 
sion gave  a  title  by  prescj'iption,  and  the  mistake  they  made 
was  a  natural  one  for  laymen  to  make.  The  plaintiff  got 
the  verdict  set  aside,  and  when  he  tried  again  his  counsel, 
who  had  learned  the  reason  of  his  miscarriage,  took  pains 
to  explain  why  the  suit  could  not  have  been  brought 
within  twenty  years  after  the  connnencement  of  the  lease, 
and  achieved  a  final  victory. 

And  we  remind  you  that  you  should  always  seek  to  have 
some  evidence  giving  a  good  reason  why  your  claim,  if 
it  is  an  old  one,  was  allowed  to  become  so  before  the  suit 
was  begun. 

§  172.  The  forum  of  yovu*  choice,  the  golden  moment  of 
favor  when  to  try,  connection  with  parties  or  a  cause  that 
are  stronger  than  yours,  admissible  proof  that  commends 
your  side  to  the  good  and  the  other  to  the  bad  will  of  ordi- 
nary men, — these  and  similar  advantages  are  to  be  looked 


122  CONDUCT   OUT   OF   COUKT. 

for  with  widc-opcii  eyes  and  clutched  with  imslipping  liold 
when  found.  And  you  are  to  be  on  the  watch  against  the 
enemy.  Build  in  time  a  protection  against  the  odium  he 
would  throw  on  you,  and  never  overlook  an  opportunity 
of  curtailing  his  emotional  resources. 

§  1/3.  Our  next  concern  here  is  to  glance  at  some  of 
the  items  of  preparation  which  do  not  properly  belong  to 
any  one  of  what  we  have  termed  the  three  elements  of 
litigation.  We  need  give  only  a  few  hints,  to  be  filled  out 
by  the  student  from  recent  books  of  practice,  the  study  of 
judicial  records,^  and  his  experience. 

§  174.  Your  declaration,  bill,  plea,  or  answer  must  be 
filed  in  time.  Where  any  of  your  papers  require  service 
you  must  be  careful  to  have  the  pr()i)er  otticer  comply  with 
the  requisites  of  the  local  statutes  or  rules  of  court.  Often 
you  should  give  certain  notices  to  the  other  side  ;  otherwise 
the  case  will  not  be  ready  for  trial  when  it  is  called  on. 

§  1 7-^.  Agreements  of  counsel  play  a  role  of  importance 
in  practice.  Thus,  an  admission  that  both  parties  derive 
title  from  the  same  person  may  save  much  expense  and 
trouble  to  the  plaintiff  in  an  action  involving  ownership 
of  land.  And  there  are  many  facts  not  really  disputed,  but 
which  must  be  proved  in  order  to  make  out  your  case. 
Your  adversary  will  usually  bo  willing  to  admit  their  exist- 
ence. J\Iany  of  your  brethren  will  be  prompt  to  make  all 
such  concessions  as  help  you  and  do  not  hurt  them.  It 
was  once  my  great  pleasure  frequently  to  have  as  the 
leader  of  the  other  side  a  consummate  lawyer  who  never 
insisted  upon  anything  immaterial.  To  all  of  my  requests 
for  the  consents  here  suggested  he  habitually  replied,  *'  I 
always  waive  everything  but  my  client's  money." 

1  See  American  Law  Studies,  §§  090-992. 


OTHER   PAETICULAKS   OF   PKEPARATION.      123 

You  will  fiiul  it  well  to  solicit  these  indulgences  as  soon 
as  you  discover  the  need  of  them,  for  it  is  much  more 
probable  that  they  will  be  granted  then  than  if  they  be  ap- 
plied for  on  the  eve  of  a  trial.  And  it  is  the  bettor  policy 
to  have  them  evidenced  by  writing.  That  Professor  Wash- 
burn never  had  a  parol  understanding  with  his  brethren 
denied  in  a  thirty  years'  practice,^  is  exceptional.  A  very 
large  proportion  of  the  bar  can  be  trusted  without  limit 
in  this  respect,  but  there  are  some  who  cannot  be.  There 
are  other  reasons  for  the  course  which  we  advise.  For  in- 
stance, a  written  agreement  having  been  acted  upon,  it  v,411 
generally  be  enforced  by  the  courts  against  counsel  who 
succeed  those  who  made  it  in  the  conduct  of  the  case. 

§  170.  Sometimes  a  position  taken  by  the  adversary  re- 
quires you  to  do  something  in  order  to  meet  it.  Thus, 
the  plea  may  truthfully  allege  that  certain  property  is  yet 
encumbered  in  a  particular  way,  when  it  was  sold  by  the 
plaintiff  as  unencumbered  and  such  sale  was  the  consider- 
ation of  the  contract  upon  which  suit  has  been  brought. 
Here  of  course  you  will  see  to  it  that  your  client  removes 
the  encumbrance  before  the  trial,  if  lie  must  and  can. 

We  have  not  space  for  further  remark  as  to  the  subject 
of  this  section.  We  leave  it  by  saying  that,  if  you  keep 
your  eyes  about  you  in  practice,  you  will  note  numy  other 
illustrations  of  things  which  the  adversary  ^vill  force  you  to 
do  if  you  would  not  forego  the  judgment  sought  in  your 
pleadings. 

§  177.  We  devote  the  rest  of  the  chapter  to  some 
general  reflections  pertinent  to  all  the  branches  of  prep- 
aration. 

In  the  first  place  let  us  note  as  a  fault  too  conuuon  with 

1  Study  and  Practite  of  the  Law,  106. 


124        CONDUCT  OUT  OF  COURT. 

eminent  counsel  that  they  leave  the  investigation  of  the 
case  and  the  classification  of  its  details  to  inferior  work- 
men. Many  assume  no  part  of  the  management  before 
trial.  They  seem  by  their  behavior  anxious  to  incul- 
cate the  belief  that  their  great  abilities  are  for  the  court- 
room ahme  ;  that  the  whole  important  conduct  is  there  ; 
and  that  there  is  as  little  precedent  preparation  of  a  case 
necessary  as  of  a  game  of  chess.  And  the  people  at  large 
still  beliove  that  all  this  is  true.  They  seek  a  strong 
speaker  to  argue  their  causes.  They  care  little  for  the  tal- 
ents or  training  of  the  humble  junior  on  whom  they  shall 
devolve  the  ceremony  of  introducing  their  champion  into 
the  lists,  esteeming  as  they  do  preparation  to  be  the  easy 
accomplishment  of  average  ability.  Now  we  have  striven 
and  written  in  vain  for  our  student,  if  we  have  not  con- 
vinced him  that  the  great  need  of  the  highest  talents  of 
the  lawyer  is  in  shaping  the  conduct  of  the  case  before 
trial.  Can  the  topography  of  a  field  be  learned  as  well 
after  the  battle  begins,  as  it  can  be  in  days  of  exclusive 
attention  beforehand?  And  can  a  lawyer  who  has  never 
looked  into  an  intricate  affair,  when  the  night  before  the 
trial  has  come,  master  the  pleadings,  the  long  array  of 
documents,  and  the  other  proofs,  and  make  the  analysis  of 
the  whole  necessary  for  its  proper  management,  as  well  as 
if  he  had  taken  months  to  do  all  these  things,  with  no  dis- 
turbing pressure  upon  him?  Our  young  lawyers  will  do 
right  to  master  thoroughly  the  duties  of  English  attorneys 
and  junior  counsel.  The  former  make  a  full  statement  of 
the  facts  gathered  from  the  client,  interviews  with  his  wit- 
nesses, and  inspection  of  pertinent  documents,  which  state- 
ment is  submitted  to  a  junior,  Avho  gives  a  written  opinion 
upon  it.     If  the  answer  of  the  counsel  is  in  favor  of  liti- 


OTHER  PARTICULARS  OF  PREPARATION.   125 

gation,  there  may  be  a  further  sifting  and  accumulation  of 
facts,  and  after  a  wliile  an  opinion  on  the  evidence  is  taken 
by  the  attorney.  Every  step  as  it  were  is  in  careful  writ- 
ing and  under  the  eye  of  an  attentive  counsel.  Finally, 
on  the  eve  of  the  trial,  the  brief  made  up  by  the  attorney, 
to  any  intelligent  lawyer,  tells  all  of  the  case  of  the  client 
and  anticipates  much  of  the  adversary's.  The  evidence  is 
marshalled  and  all  the  details  co-ordinated,  the  issues  pre- 
sented and  the  line  of  conduct  indicated.  I  am  convinced 
that  our  system  in  America,  uniting  as  it  does  attorney 
and  counsel  in  one,  is,  in  the  hands  of  thoroughly  trained 
lawyers,  the  better.  Its  faults,  which  are  mainly  due  to 
defects  of  professional  education,  are  not  inherent,  while 
it  has  a  great  inherent  superiority  to  the  English.  Under 
the  latter,  the  counsel  is  never  brought  in  contact  with  the 
witnesses  until  he  faces  them  on  the  stand.  To  use  a 
metaphor  from  the  military,  the  general  never  reconnoitres 
in  person.  We  subjoin  the  comment  of  our  celebrated 
lawyer,  Da\id  Paul  Bi-own. 

§  178.  "Both  of  these  systems  [the  Roman  and  the 
English]  were  undoubtedly  less  onerous  and  more  agree- 
able than  ours,  but  neither  of  them  was  as  beneficial  or  so 
economical  as  that  which  is  almost  invariably  adopted  in 
the  American  courts,  and  especially  in  Philadelphia.  Here 
the  attorney  is  the  counsel  and  the  counsel  the  attorney ; 
he  manages  and  controls  the  entire  progress  of  the  suit ; 
his  intercourse  with  his  client  is  not  intermediate  but  di- 
rect ;  he  conducts  all  the  pleadings,  prepares  his  own  brief, 
examines  the  witnesses  in  his  office  or  in  court,  digests  and 
arranges  his  own  authorities,  and  finally  argues  the  case. 
The  labor  incident  to  these  duties  is  very  great,  but  its 
advantages  are  commensurate.     A  man  can  never  perform 


126         CONDUCT  OUT  OF  COURT. 

any  work  so  satisfiictorily  ;i8  when  lie  is  acting  upon  liis 
own  knowloclg»3,  nor  can  facts  procured  by  an  attorney  be 
as  satisfactory  to  counsel  as  those  which  lie  himself  might 
obtain  by  personal  examination.  Every  man  has  his  own 
views  in  regard  to  the  points  of  a  case  and  the  nature  of 
the  evidence  required  to  elicit  them,  and  he  can  therefore 
*  best  minister  to  himself. '  This  course  secures  counsel 
against  confusion  and  surprise  ;  it  furnislics  him  with  a 
knowledge  of  the  weakness  as  well  as  the  strength  of  his 
case  and  that  of  iiis  adversary ;  it  brings  him  into  timely 
contact  with  his  witnesses,  he  becomes  acquainted  with 
tlieir  manner,  their  temper,  their  bias ;  all  of  which  enter 
largely  into  the  estimate  of  their  testimony.  It  has  been 
suggested  that  t'lis  Avould  be  impracticable  in  England. 
It  might  be  inexpedient  to  make  any  radical  change  in 
their  deeply  rooted  system,  but  it  certainly  would  not  be 
impracticable,  nor  perhaps  injudicious.  It  is  true  we  can- 
not argue  against  a  system  merely  because  it  is  subject  in 
some  respects  to  casualties  or  exceptions,  but  those  Avho 
have  attended  legal  proceedings  at  AVestminster  Hall  or 
Lincoln's  Inn  could  not  fail  to  have  perceived,  and  not  un- 
frequcntly,  great  embarrassment  of  the  counsel  from  a  want 
of  that  familiarity  with  the  facts  and  their  application  to 
the  legal  points  of  a  case  which  would  have  been  avoided 
or  lessened  by  pursuing  the  system  adopted  in  this  coun- 
try. No  lawyer  can  examine  a  witness  satisfactorily  from 
the  notes  or  brief  prepared  by  any  otlier  hand  than  his 
own  ;  he  is  often  rather  benighted  than  enlightened.  And 
of  all  briefs,  the  brief  of  an  attorney  would  be  the  most 
objectionable  or  least  .available.  They  save  time  to  coun- 
sel, but  they  place  him  in  a  state  of  dependence  from  Avhich 
it  in  some  cases  happens  no  genius  or  talent  can  relieve 


OTHER  PARTrCULARS  OF  PREPARATION.   127 

him.  A  nimi  wlio  always  depends  upon  another  naturally 
and  necessarily  impairs  his  own  powers. 

§  179.  *•  We  reuiembcr  a  rather  amusing  instance  of 
this  in  the  argument  of  an  injunction  in  the  case  of  The 
Queen  r.  Strange,  before  Sir  Knight  Bruce,  in  1848.  The 
attorney  or  solicitor  having  of  course  prepared  [the  brief 
of?]  the  pleadings,  which  were  voluminous,  bill,  answer, 
etc.,  the  learned  judge  during  the  argument  inquired  of 
Mr.  Talfourd  as  to  the  averment  of  a  certain  fact  which 
was  deemed  vital  to  the  proceeding.  The  learned  Sergeant 
(who  had  probably  never  read  anything  more  than  an  ab- 
stract of  the  bill)  could  not  find  it,  —  none  of  the  attorneys 
could  find  it.  The  Crown  affirmed  its  existence,  the  defend- 
ant denied  it,  and  after  an  hour's  confusion  it  turned  out 
that,  although  contained  in  the  original  bill,  it  had  been 
omitted  from  the  transcript."  ^ 

§  180.  The  advantage  of  collecting  and  inspecting  the 
evidence  for  one's  self,  and  of  keeping  up  with  the  prepa- 
ration at  every  stage,  can  hardly  be  overrated.  Without 
this  the  wariest  lawyer  will  often  commit  pernicious  blun- 
ders both  of  omission  and  commission.  Especially  should 
the  leader,  or  his  most  reliable  associate,  always  talk  with 
the  party  and  witnesses  in  cases  Avhere  the  facts  are  seri- 
ously contested.  Mr.  Parker  narrates  the  following,  which 
will  enforce  our  counsels  :  — 

§  181.  "  He  [one  Captain  Ashton]  claimed  to  have 
loaned  several  thousand  dollars  to  a  trader  upon  a  mort- 
gage of  his  stock.  The  trader  failed,  and  his  creditors 
contested  the  mortgage.  They  urged  that  the  captain 
had  no  visible  means,  no  property,  and  could  not  have  had 
the  money  to  lend  on  UKM'tgage  ;  and,  moreover,  that  the 

1  2  Forum,  255  ct  scq. 


128         CONDUCT  OUT  OF  COURT. 

trader's  stock  of  goods  was  so  small  and  his  assets  so  defi- 
cient that  he  could  not  have  had  the  money. 

'*  Cai)tain  Ashton  contended  that  his  money  came  to 
him  from  England  in  sovereigns,  and  that  he  lent  thia 
gold  to  the  trader. 

"  It  looked  rather  dubious  for  Ashton. 

"  Mr.  Choate  prepared  to  try  tlie  case  for  the  plaintiff, 
Ashton.     It  was  to  come  on  at  Lowell. 

"  The  plaintiiFs  witnesses  were  summoned  to  meet  Mr. 
Choate  in  a  room  of  the  hotel.  Ashton  had  not  met  his 
debtor  for  some  time.  Ashton  and  his  counsel,  with  wit- 
nesses, were  in  the  private  room  when  the  mortgagor,  who 
had  been  notified  to  appear,  came  in.  Ashton  sprang  at 
him  like  a  tiger.  '  You  scoundrel,'  said  he,  '  you  have 
cheated  me  ;  you  have  robbed  me  of  my  gold.' 

"  Mr.  Choate  remarked  to  the  writer,  years  afterwards, 
in  speaking  of  this  case, '  That  incident  satisfied  me  my  cli- 
ent was  right.  I  knew  it  and  felt  it,  and  knew  that  was 
the  case  for  me.  I  care  not  how  hard  the  case  is,  —  it 
may  bristle  with  difficulties,  —  if  I  feel  that  I  am  on  the 
right  side,  that  cause  I  win.' 

"  Mr.  Choate  got  a  verdict,  but  it  was  set  aside  for  some 
cause  ;  and  before  the  second  trial  Ashton  had  disappeared. 
But  sufficient  facts  were  subsequently  developed  to  leave 
no  doubt  that  Ashton's  story  was  true."  ^ 

§  182.  Now  had  Mr.  Choate  been  an  English  counsel 
engaged  in  this  case  in  England,  he  would  not  have  en- 
tered the  trial  encouraged  by  ha\ing  witnessed  this  impres- 
sive spectacle.  Some  attorney  might  have  seen  it  and  tried 
to  narrate  it  to  the  counsel,  but  he  could  not  have  fully 
represented  the  expression  and  the  action  of  xVshton. 

1  Reminiscences,  115. 


OTHER  PARTICULARS   OF   PREPARATION.      129 

§  183.  In  advising  the  attorney  who  is  getting  up  a 
ease  to  sift  the  witnesses  well,  Sir  George  Stephen  ad- 
mits that  J^^nglish  counsel  are  unskilful,  in  the  following 
passage :  — 

"  I  have  dwelt  at  considerable  length  on  the  examina- 
tion of  the  evidence  because  it  is  the  most  important  of  all 
duties  that  fall  to  the  lot  of  the  attorney,  and  it  is  the  only 
one  in  which  he  ca!i  derive  no  assistance  from  the  superior 
information  of  counsel ;  indeed,  I  have  generally  found 
counsel  more  unskilful  in  the  private  examination  *of  wit- 
nesses than  ourselves,"  ^  —  that  is,  than  attorneys. 

This  inferiority  of  English  counsel  is  due  to  their  little 
practice-  in  such  private  examination.  The  defect  should 
be  carefully  avoided  by  the  American  lawyer.  To  be  able 
to  elicit  from  dull  or  reluctant  people  all  that  they  know 
of  benefit  to  the  client,  is  a  most  valuable  quality.  And 
it  is  one  which  a  counsel  by  reason  of  his  superior  legal 
knowledge  and  training  can  develop  to  a  much  higher  de- 
gree of  efficiency  than  can  be  attained  by  an  attorney. 

§  184.  There  is  a  natural  consolidation  as  well  as  a  nat- 
ural division  of  labor,  and  so  there  is  simplification  going 
on  in  the  world  as  well  as  multiplication.  The  division  of 
labor  between  the  English  attorneys  and  counsel  is  as  if 
the  master  never  took  his  scholar  in  hand  until  the  mo- 
ment of  final  examination,  having  turned  over  his  training 
to  an  ignorant  assistant.  A  delicate  trust,  requiring  skill 
and  tact  for  its  performance,  if  delegated  by  the  trustee, 
should  be  delegated  only  to  an  agent  possessing  requisite 
ability.  What  would  be  thought  of  an  ancient  historian  — 
a  Niebuhr  or  a  ]\Iommsen  —  who  took  the  facts  from  which 
he  drew  his  conclusions  entirely  from  modern  compilations  ? 

'  Adventures  of  an  Attorney,  otc,  306  (New  York,  1874). 
9 


loO  CONDUCT   OUT   OF   COUllT. 

How  far  short  oi'  his  able  and  exhaustive  treatment  woukl 
Mr.  Bishop  come  if  he  never  consulted  the  reports  and 
authorities  for  himself,  but  got  them  at  second  hand  from 
the  notes  of  clerks  and  copyists  !  If  we  found  such  a  sys- 
tem of  writing  history  or  law-books  we  should  j)roiiounce 
the  division  of  labor  in  it  to  be  unnatural  and  pernicious. 
And  it  seems  to  me  that  the  English  system,  dividing  as  it 
does  the  preparation  of  cases  between  attorney  and  counsel, 
and  not  permitting  the  latter  to  sound  the  witnesses  and 
party  for  himself,  is  so  far  a  false  system.  1  believe,  if  the 
duties  were  interchanged,  if  the  superior  man  were  to  play 
the  attorney,  sift  the  witnesses,  marshal  the  proofs,  and 
leave  to  the  less  learned  and  able  attorney  the  drafting  of 
the  pleadings  and  the  conduct  at  the  trial,  that  in  the  final 
issue  of  litigation  those  parties  who  had  the  better  causes 
would  in  the  average  fare  better  than  they  do  now.  The 
disease  of  the  system  is  that  it  assigns  the  feebler  and 
more  unskilled  man  to  the  post  which  requires  the  greater 
strength  and  skill,  and  it  artificially  divides  that  which  iii 
its  nature  is  indivisible  and  integral. 

§  185..  Our  young  lawyers  of  America  should  aspire  to 
make  both  good  attorneys  and  good  counsel.  They  will 
be  the  better  counsel  for  having  become  good  attorneys. 
When  they  have  risen  to  leadership  and  much  of  the  bur- 
den of  preparation  must  be  devolved  on  their  partners  and 
associates,  they  will  rightly  guide  and  direct  the  latter, 
and  also  know  when  their  personal  attention  to  the  facts 
and  details  of  cases  is  necessary  and  how  to  render  it 
properly. 

§  186.  There  are  many  cases  of  multifarious  and  com- 
plicated details,  or  of  doubt  and  difficulty  as  to  the  law, 
where  it  is  advisable  for  the  client  to  have  more  than  one 


OTHER   PAin'RULARS   OF    PRErAIiATION.      131 

counsel.  Occasionally  wc  see  a  single  lawyer  get  up  an 
important  and  laborious  case  well,  and  conduct  it  fault- 
lessly from  beginning  to  end.  But  ordinarily  one  in  good 
practice  is  so  subject  to  interruptions  of  many  kinds  that, 
though  ever  so  careful  and  [)ainstaking,  he  is  not  willing 
to  undertake  the  entire  nuuuigenient  and  preparation  of  a 
seriously  litigated  case.  The  old  adage,  that  two  heads 
are  better  than  one,  is  applicable.  Labor  merely  manual 
or  clerical  needs  not  much  looking  after  if  the  laborer  is 
honest.  But  where  there  must  be  thought  and  reflection 
at  every  step,  the  wisest  and  most  capable  man  should  in- 
crease his  own  ability  with  assistance.  You  liave  seen  the 
bystander  point  out  the  best  move  in  the  game,  which  had 
been  overlooked  by  the  player.  Possibly  there  have  been 
many  good  moves  which  he  did  not  anticipate ;  and  yet 
as  to  the  particular  move  mentioned  he  has  had  better  in- 
sight than  the  player.  I  inquired  the  character  as  a  lawyer 
of  a  new-made  judge  of  one  of  the  shrewdest  and  quickest 
members  of  the  bar.  "  0,"  he  replied,  ''  he  is  a  splendid 
fellow  to  sit  by  you  during  a  trial  and  give  you  sugges- 
tions." There  is  hardly  any  lawyer  who  will  not,  when  he 
is  preparing  or  trying  a  case  alone,  sometimes  commit  a 
blunder  which  will  chagrin  him,  because  it  is  so  palpable 
after  it  is  connnitted.  The  blunder  will  be  seldom  per- 
mitted by  an  attentive  associate  of  even  humble  capacity. 
The  ablest  lawyer  will  generally  be  the  busiest  ;  and  he 
will  therefore,  in  his  moments  of  fatigue  and  exhaustion, 
or  when  he  is  too  pressed  witii  a  multiplicity  of  engage- 
ments to  look  into  any  one  thing  with  sufficient  care,  need 
the  calm  vision  of  an  unruffled  associate. 

§   187.     The   burden    of  preparation   should   be   fairly 
divided   between  associates.      Each    one  of  them  should 


132         CONDUCT  OUT  OF  COURT. 

be  chosen  for  his  peculiar  ability,  and  then  be  made  to 
exert  it.  The  following  passage  from  tlie  Life  of  Burr  is 
illustrative :  — 

"  He  [Burr]  showed  unequalled  tact  in  placing  his  men. 
Before  selecting  his  associates  in  a  cause,  he  would  ascer- 
tain and  carefully  calculate  all  the  opposing  influences,  — 
prejudices,  interest,  indiff"erencc,  ignorance,  political,  local, 
and  f^imily  feeling,  —  and  choose  the  man  likeliest  to  com- 
bat them  with  effect.  If  there  was  a  crank  in  the  mind  of 
the  judge  he  would  find  the  hand  that  could  turn  it  to  his 
advantage.  If  there  was  a  prejudice  in  the  mind  of  a  juror 
he  would  contrive  by  some  means  to  bring  it  to  bear  in 
favor  of  his  client.  If  learning  and  eloquence  were  essen- 
tial he  would  enlist  their  aid  also."  ^ 

§  188.  This  excerpt  from  Lord  Bacon  is  of  application 
here  :  — 

"  There  be  three  parts  of  business,  the  preparation,  the 
debate  or  examination,  and  the  perfection.  Whereof  if 
you  look  for  despatch,  let  the  middle  only  be  the  work  of 
many,  and  the  first  and  last  the  work  of  few."  ^ 

We  may  make  "  preparation  "  stand  for  the  analysis  of 
the  case  and  enucleation  of  the  issues,  which  of  course 
must  precede  the  assignment  of  their  parts  to  the  different 
associates.  The  "  debate  or  examination "  includes  the 
varied  labor  of  the  associates.  And  the  "  perfection  "  is 
that  which  we  shall  soon  explain  to  be  the  Plan  of  Conduct 
and  also  the  command  exercised  by  the  leader  throughout 
the  trial. 

§  189.  There  should  be  frequent  consultations  of  all  the 
counsel.  Every  one  of  them  should  at  any  moment  know 
not  only  what  has  been  done  by  the  others,  but  also  what 

'  Parton,  Life  of  Burr,  150.  ^  Essaj',  Of  Despatch. 


OTHER  PARTICULARS  OF  PREPARATION.   133 

each  is  then  doing  and  is  to  do.  Tiiis  unity  will  secure 
from  every  one  his  utmost  achievement.  Thereby  faults 
will  be  corrected,  blunders  avoided,  and  surprises  antici- 
pated. And  the  client  should  not  be  permitted  to  encum- 
ber the  case  with  useless  counsel.  He  should  be  made 
to  understand  that  according  to  the  proverb,  what  is  every- 
body's business  is  nobody's,  he  is  but  inviting  failure  when 
he  has  a  throng  of  counsel  and  it  is  not  known  which  one 
should  lead  and  who  should  be  answerable  for  the  several 
items  of  preparation.  There  should  be  a  leader,  chosen 
either  by  the  client  or  designated  by  his  superior  standing. 
As  a  general  rule  the  associates  should  be  selected  under 
his  advice.  His  experience  and  knowledge  will  dictate  to 
him  the  kind  and  number.  After  they  are  selected  and 
placed,  there  should  be  between  all  the  extreme  of  freedom 
and  unreserve  as  to  the  secrets  of  the  case.  Every  contri- 
bution that  any  one  of  them  can  make  to  the  cause  should 
be  made  without  stint.  Nursing  a  darling  point  in  reti- 
cence and  keeping  it  from  his  companions  to  make  a  sur- 
prising and  brilliant  display  of  it  in  court,  is  unworthy  of 
a  lawyer.  Rather  when  the  preparation  has  been  difficult 
and  laborious  and  a  faultless  conduct  has  won  a  great  vic- 
tory, let  it  be  impossible  to  discover  who  did  any  particular 
part  of  the  perfect  work.  And  bickerings  and  manifesta- 
tions of  jealousy  between  associates  are  dishonoring  to  the 
profession. 

§  190.  A  new  counsel,  employed  after  the  preparation 
has  commenced,  should  be  furnished  by  the  others  with 
their  knowledge  and  views  of  the  evidence  and  their  legal 
positions  and  citations.  He  can  thus  begin  his  investiga- 
tion where  they  have  left  off,  which  will  save  time  and 
profitless  labor  to  the  case. 


134        CONDUCT  OUT  OF  COURT. 

§  191.  Treat  your  associate  always  witli  respect.  Hear 
his  suggestions  with  attention.  Though  lie  is  as  far  from 
you  as  niglit  is  from  day,  manifest  no  impatience.  If  you 
disagree,  avoid  all  heat.  A  calm  and  placid  statement  of 
a  different  view  when  you  are  in  the  right  will  nearly 
always  be  convincing.  And  if  you  keep  cool  and  your 
adviser  states  his  opinion  without  excitement,  you  will 
yield  in  case  the  opinion  appears  to  be  correct.  Truth 
presented  without  excitement  to  a  mind  not  passionate  is 
generally  accepted  as  soon  as  understood. 

§  192.  Local  counsel,  as  Americans  are  in  the  habit  of 
terming  lawyers  who  reside  in  the  community  where  the 
case  is  to  be  tried,  are  nearly  always  indispensable.  The 
movements  of  the  adversary  and  the  opposing  influences 
at  w^rk  can  be  i^roperly  watched  only  by  counsel  on  the 
spot,  and  most  of  the  preparation  must  be  there  made. 
The  sway  of  local  counsel  is  also  to  be  taken  into  the 
account.  The  popularity  of  hiAvj'ers  and  their  troops  of 
numerous  friends  are  often  formidable  allies  to  the  client. 
The  personal  influence  of  a  particular  lawyer  is  sometimes 
of  itself  worth  a  large  fee. 

§  193.  The  foregoing  as  to  plurality  of  counsel  is  in- 
tended to  be  suggestive  rather  than  exhaustive.  The  prin- 
ciples determining  their  proper  selection  are  well  understood 
by  the  profession,  although  they  are  too  often  disregarded. 
We  leave  the  subject  with  the  remark,  that  we  have  more 
often  seen  too  many  counsel  than  too  few  associated. 

§  194.  That  the  practitioner  should  always  have  a  defi- 
nite purpose  is  a  truism,  but  it  is  so  surpassingly  important 
that  we  nnist  say  something  special  of  it.  The  sixth  of 
David  Paul  Brown's  Golden  Rules  for  the  Examination  of 
Witnesses  is,  "  Never  ask  a  question  without  an  object,  nor 


OTHER   PARTICULARS   OF   PREPARATIUN.      loS 

without  being  able  to  conneet  that  objeet  with  the  case  if 
objected  to  as  irrehitive."  It  is  the  Uolden  Rule  of  prep- 
aration that  everything  from  beginning  to  end  be  done 
with  intelligent  purpose.  Action  solely  for  the  sake  of 
action,  as  a  woman  often  insists  upon  dosing  a  sick  patient 
with  the  first  medicine  that  ccmies  to  hand  merely  because 
something  nmst  be  done,  is  sheer  foolishness.  It  is  not 
enough  that  everything  be  done  with  an  object :  it  should 
be  done  in  accordance  with  the  well-understood  purpose 
of  right  preparation.  The  lawyer,  whether  he  is  leading 
counsel  or  not,  should  have  a  clear  perception  of  the  end 
to  be  attained  before  he  begins  to  act.  If  not,  he  w411 
disarrange  the  unity  of  his  preparation  and  be  often 
detected  and  exposed  by  a  skilful  adversary  as  warring 
against  his  own  side. 

§  195.  But  this  is  not  advice  to  stand  forever  shivering 
on  the  brink.  Goethe  says,  "  Who  meditates  long  does 
not  always  choose  the  best  "  ;  and  again,  ''  Many  delibera- 
tions usually  show  that  one  has  not  his  proper  object  before 
his  eyes,  while  overhasty  actions  show  that  he  does  not 
know  what  it  is."  A  lawyer  must  decide,  and  having  de- 
cided he  must  act  promptly  and  keep  acting  vigorously. 
He  is  not  the  hesitating  Handet,  who  stops  to  probe  and 
sound  every  proposed  measure  to  its  infinite  depths.  He 
cannot  even  meditate  long  over  his  law-books.  He  must 
be  as  quick  as  Kenyon,  of  whom  Lord  Campbell  tells 
us :  "  Dunning,  instead  of  continuing  to  dine  on  cowhcel, 
shortly  after  being  called  to  the  bar  was  making  thousands 
a  year  and  had  obtained  a  scat  in  Parliament.  He  had 
many  more  briefs  than  he  could  read  and  many  more  cases 
than  he  coidd  answer.  Kenyon  became  his  fag,  or  in 
legal  language  his  '  devil,'  and  then  began  the  career  which 


136        CONDUCT  OUT  OF  COURT. 

led  to  the  chief  justiceship.  With  most  wonderful  celer- 
ity he  picked  out  the  important  facts  and  points  of  law 
which  lay  buried  in  immense  masses  of  papers,  and  ena- 
bled the  popular  leader  to  conduct  a  case  almost  without 
trouble  as  well  as  if  he  had  been  studying  it  for  days  to- 
gether." 

§  190o  Ilis  quickness  introduced  Kenyon  to  Lord  Thur- 
low.     The  same  biographer  says  :  — 

"  But  his  fortune  was  made  by  the  elevation  of  Thurlow 
to  the  woolsack.  This  man  of  extraordinary  capacity  and 
extraordinary  idleness  when  called  to  sit  in  the  Court  of 
Chancery,  earnestly  desired  to  decide  properly  and  even 
coveted  the  reputation  of  a  great  judge,  but  would  by  no 
means  submit  to  the  drudgery  necessary  for  gaining  his 
object,  and  as  soon  as  he  threw  off  his  great  wig  he  mixed 
in  society  or  read  a  magazine.  To  look  into  the  authorities 
cited  before  him  in  argument  and  to  prepare  notes  for  his 
judgments,  Hargrave,  the  learned  editor  of  Coke  upon 
Littleton  was  employed,  but  he  was  so  slow  and  dilatory 
that  the  lion  in  a  rage  was  sometimes  inclined  to  devour 
his  jackal.  Kenyon,  sitting  in  court,  with  a  very  moderate 
share  of  practice,  having  once  or  twice  as  amicus  curim 
very  opportunely  referred  him  to  a  statute  or  a  decision, 
was  called  in  to  assist  him  in  private ;  and  now  the  de- 
lighted Chancellor  had  in  his  service  the  quickest  instead 
of  the  most  languid  of  journeymen." 

§  197.  This  faculty  of  rapid  and  accurate  work  is  indis- 
pensable to  the  efficient  lawyer.  For  all  the  wonderful 
correctness  of  his  judgments,  Lord  Eldon's  fame  would 
now  be  greater  had  he  been  less  slow  to  decide  and  act. 
Mr.  Smiles,  in  his  Self-Help,  thus  illustrates  our  present 
theme :  — 


OTHER  PARTICULARS   OF   PREPARATION.     137 

"  Sir  Walter  Scott,  writing  to  a  youth  who  had  obtained 
a  situation  and  asked  for  liis  advice,  gave  him  in  rej)!}'  this 
sound  counsel,  '  Beware  of  stumbling  over  a  propensity 
which  easily  besets  you  from  not  having  your  time  fully 
employed.  I  mean  what  the  women  call  dawdling.  Your 
motto  must  be,  Hoc  age.  Do  instantly  whatever  is  to  be 
done.' " 

§  198.  Of  course  there  should  be  the  indispensable  pre- 
cedent forethought ;  and  rapid  as  his  action  must  be,  the 
lawyer  must  feel  when  it  is  finished  that  it  has  been  done 
with  full  consideration.  The  words  of  Burr,  who  was  as 
prompt  to  decide  as  he  was  indefatigable  in  execution,  are 
wisdom.  We  transcribe  from  Mr.  Parton's  Life.  "  There 
is  a  maxim,"  said  he,  "  Never  put  off  till  to-morrow  what 
you  can  do  to-day.  This  is  a  maxim  for  sluggards.  A 
better  reading  of  it  is,  Never  do  to-day  ivhat  you  can  as 
well  do  to-morroiv,  because  something  may  occur  to  make 
you  regret  your  premature  action."  David  Paul  Brown 
did  injustice  to  this  counsel  of  Burr.^  To  harmonize  its 
teaching  with  that  of  the  sayings  of  Goethe  and  Scott  just 
quoted,  is  to  formulate  the  essential  principle  of  a  busy 
man's  life.  Action  must  be  prompt,  but  it  must  be  well 
weighed  ;  it  must  be  as  prompt  as  it  can  be  to  be  well 
weighed,  and  as  well  weighed  as  is  compatible  with  its 
being  prompt. 

§  199.  This  necessary  accurate  forethought  and  prompt- 
ness can  only  be  had  by  the  preservation  of  composure. 
Here  are  wise  words  of  David  Paul  Brown  :  — 

"  By  all  means  in  all  circumstances  maintain  your  com- 
posure ;  if  you  lose  that,  you  lose  all.  If  asked  what  is 
the  most  desirable  attainment  of  a  lawyer,  we  should  say 

1  Forum,  II.  69. 


138  CONDUCT   OUT   OF   COURT. 

composure.  A  wealtliy  and  venerable  gentleman  of  this 
city,  whose  only  son  had  recently  been  admitted  to  practice, 
called  ui)on  us  and  with  a  perfectly  natural  interest  in  the 
future  advancement  of  his  son  in(]uired  what  course  we 
would  recommend  in  order  to  his  success  at  the  bar. 
*  Your  son,'  was  the  reply,  '  has  liad  an  excellent  cduca^- 
tion  in  literature  and  in  law.  xVll  that  he  will  require  in 
order  to  render  his  faculties  and  learning  available  is  com- 
posure.' '  Ay,'  said  the  anxious  parent,  '  but  how  is  that 
to  be  acquired  ? '  '  That/  we  replied,  '  nmst  depend  upon 
himself  and  upon  time  and  circumstances.  He  nuist  learn 
it  as  Peter  the  Great  learned  to  conquer,  by  being  flogged 
and  defeated  over  and  over  again,  deriving  instruction  from 
every  overthrow.  In  short,  he  must  let  no  man  be  master 
of  his  temper  but  himself.'  " 

§  200.  Flurry  from  thinking  too  much  of  your  adver- 
sary's weapons  and  too  little  of  your  own,  or  from  the 
short  time  allowed  for  getting  ready,  or  from  the  self-accu- 
sation of  neglected  opportunities,  often  balks  preparation. 
And  if  you  will  note  some  lawyers  at  work  in  their  cham- 
bers they  are  always  imagining  the  trial,  devising  brilliant 
cross-examinations  in  detail  for  adverse  witnesses  whose 
real  testimony  they  have  not  taken  proper  pains  to  dis- 
cover, and  making  showy  speeches  to  points  of  law  and 
fact  w  Inch  will  never  arise.  They  heat  themselves  and  be- 
come oratorical  too  soon  ever  to  learn  the  all-important 
particulars  of  the  case  wdiich  supply  winning  arguments 
and  appeals.  This  poisons  all  their  labors.  They  almost 
remind  one  of  children  talking  to  themselves  while  build- 
ing air-castles  in  the  future.  A  trial  anticipated  in  this 
spirit  will  most  generally  prove,  when  it  comes,  to  be 
an  air-castle.     In  the  preparation  of  his  cases  the  lawyer 


OTHER  PARTICULARS  OF  PREPARATION.   139 

ought  to  avoid  all  passion  and  resolutely  turn  away  from 
the  visionary.  A  judge  impartial,  or  a  jury  not  partaking 
at  all  of  his  client's  passion  or  his  own,  are  to  be  convinced 
that  his  case  is  good. 

§  201.  Patient  and  never  remitted  attention  is  a  potent 
virtue.  Everything  seems  to  have  grown  more  definite  in 
our  day,  and  accuracy  is  more  demanded  than  ever.  The 
lawyer  must  be  always  ready  to  show  that  he  thoroughly 
understands  his  case,  and  that  he  can  with  exactness  apply 
to  it  the  guiding  law,  which  he  must  also  thoroughly  un- 
derstand. I  suppose  that  every  lawyer  of  some  practice 
has  noted  how  rare  a  talent  it  is  in  men  to  report  the  sub- 
stance of  anything  accurately.  When  you  are  trying  a 
case  and  the  evidence  has  developed  that  one  not  thought 
of  before  nuist  know  important  facts,  and  you  have  him 
sounded  by  your  client  or  your  junior  and  a  favorable  re- 
port is  brought  back,  you  will  do  well,  if  you  can,  to  hold 
a  brief  colloquy  with  him  before  you  swear  him.  jNIany 
listeners  hear  only  what  they  wish  to  hear,  and  this  is  a 
large  class  ;  and  a  still  larger  class  misapprehend  what  they 
do  hear.  The  flying  rumors  that  go  around  in  society  are 
exaggerated  instances.  At  last,  in  their  most  grotesque 
form  and  in  the  widest  departure  from  the  truth,  they  are 
but  the  result  of  many  misapprehensions  concentrated. 
Patient  attention  to  your  client  Avill  make  you  under- 
stand him  at  last ;  by  patient  attention  you  will  master 
the  obscure  narratives  of  t\\c  witnesses,  the  pleadings,  a 
mountain  of  documents,  the  resources  aiul  designs  of  the 
adversary,  and  by  the  same  power  you  will  time  and  again 
extricate  your  case  from  decisions  and  apparent  construc- 
tions of  statutes  which  for  a  long  time  menaced  it  with 
certain  ruin. 


140  CONDUCT   OUT   OF   COUliT. 

§  202.  Therefore  let  the  lawyer  earry  all  of  his  cases 
with  him  everywhere.  On  every  particular  one  he  should 
be  always  able  to  pass  a  Socratic  cross-examination.  Soc- 
rates held  that  no  man  was  master  of  a  subject  until  he 
could  handle  it  from  all  points  of  view.  This  knowledge 
is  not  to  be  imparted  by  a  set  discourse.  A  man  must 
acquire  it  for  himself.  It  is  in  the  head,  in  the  compre- 
hension, rather  than  in  the  memory.  This  is  illustrated 
in  the  case  of  an  honest  and  rightly  seeing  witness  under 
a  searching  cross-examination.  He  will  be  asked  many 
questions  which  he  has  not  anticipated,  but  if  he  keeps  his 
coolness  he  will  answer  aright  and  all  his  answers  will  be 
consistent.  So  long  as  he  stands  upon  his  own  knowledge 
he  cannot  be  made  to  contradict  himself.  And  thus  a 
lawyer  must  know  his  case,  so  that  he  may  be  able  to 
meet  at  once  any  attack  of  the  adversary,  although  he  may 
not  have  foreseen  it.  As  soon  as  he  understands  the 
attack  he  can  show  that  it  is  inconsistent  with  what  he 
knows  the  case  to  be. 

§  203.  The  grand  result  of  thorough  preparation,  where 
the  lawyer  lias  been  patient,  attentive,  industrious,  and 
free  from  passion,  is  this  accurate  and  well-in-hand  knowl- 
edge. We  observe  many  of  our  brethren  groping  in  the 
dai'k,  as  it  were,  in  search  of  they  know  not  what.  It  is 
this  which  they  are  unconsciously  looking  for.  The  law- 
yer who  has  such  a  knowdedge  of  his  case  can  be  put  down 
only  by  equal  knowledge  and  the  right  on  the  other  side. 
In  intricate  cases,  he  who  has  got  the  details  by  heart, 
so  that  he  can  present  them  all  from  innumerable  stand- 
points, is  an  over-match  for  an  antagonist  who  has  only  a 
smattering  of  the  case,  even  where  the  right  is  strongly 
with   him.     How   does  this  victorious  knowledfje  come? 


OTHER  PARTICULARS  OF   PREPARATION.     141 

It  is  mainly  character.  The  self-collected,  thorough-bred 
lawyer,  exempt  from  all  vanity,  self-reliant  without  being 
self-conceited,  who  save^  all  his  passion  for  the  jury,  who 
hardily  looks  any  unpleasant  anticipation  full  in  the  face, 
and  who  is  incessantly  testing  in  cold  blood  the  san- 
guine representations  of  clients  and  their  partisans  and  his 
associates,  will  acquire  a  profound  familiarity  with  the  case 
in  an  incredibly  short  time.  If  one  wishes  to  win  by  de- 
ceit and  perversion  he  will  study  deceit  and  perversion  ;  if 
he  belongs  to  those  over-sanguine  people  who  believe  that 
no  disaster  can  ever  befall,  he  will  build  perilously  on  hasty 
assumptions ;  but  if  he  fully  understands  how  a  trial  is  a 
thorough  discussion  of  the  questions  made  by  the  law  and 
evidence,  he  will  seek  to  come  with  the  requisite  knowl- 
edge for  such  a  discussion.  And  this  knowledge  produces 
the  "  vigorous  verdict-getting  counsel."  ^ 

§  204.  How  empty  and  vain  are  the  talents  of  perver- 
sion arrayed  in  a  real  court  against  this  true  mastery  !  The 
great  lawyer  whom  we  sketched  above  ^  was  so  little 
solicitous  for  the  last  word  that  he  never  would  manoeu- 
vre nor  wrangle  for  the  right  to  conclude.  lie  often  made 
a  gift  of  it  to  his  adversary.  But  it  was  a  world's  wonder 
when  he  lost  a  good  case.  His  knowledge  of  any  matter 
he  was  trying  was  so  accurate  and  ready  that  no  misrepre- 
sentation could  prevail  against  him. 

§  205.  The  preparation  which  the  great  Rufus  Choate 
habitually  gave  his  cases  should  be  ever  held  up  before  the 
young  lawyer.     The  following  is  told  of  it :  —      , 

^  Lord  CampbeU's  Life  of  Lord  Brougliani,  256  (London,  1869).  The 
words  quoted  are  a  panegyric  of  Mr.  Ciariie,  leader  of  the  Midland 
Circuit. 

■^  Ante,  §  78. 


142  CONDUCT   OUT   OF   COURT. 

"  Wliiit  laborious  ami  careful  and  plodding  preparation 
he  made  in  the  plainest  of  cases  !  When  occasion  de- 
manded he  was  the  readiest  of  men  ;  and  he  undoubtedly 
did  enter  upon  cases  without  much  preparation. 

"  But  ordinarily  his  preparation  was  elaborate.  He 
loved  to  exhaust  the  subject.  His  respect  for  the  bench 
led  him  to  make  thorough  preparation  of  the  law  of  his 
case,  and  when  his  case  was  for  the  jury  he  remembered 
the  twelve  who  were  to  pass  upon  the  facts ;  for  he  always, 
as  he  said,  went  in  for  the  verdict 

"  I  have  known  him  to  hold  two  consultations  with  his 
junior,  preparatory  to  a  hearing  in  the  probate  court  on 
some  motion  for  a  new  bond ;  and  I  have  known  him 
equally  elaborate  on  a  motion  to  amend  some  interlocutory 
decree  in  the  Superior  Court.  Those  who  have  been  his 
juniors  in  the  preparation  and  trial  of  cases  will  remember 
how  he  made  them  work."  ^ 

§  206.  A  later  biographer  quotes  Mr.  Bell's  account, 
which  we  here  transcribe  :  — 

"Mr.  Choate's  method  of  preparing  his  cases  for  trial 
and  argument  depended  so  much  upon  the  varying  circum- 
stances of  the  cases,  that  it  is  very  difficult  to  say  that  he 
had  any  particular  plan.  But  this  always  was  his  practice 
w^hen  he  had  time  for  it. 

"  If  for  the  plaintiff,  a  strict  examination  of  all  the 
pleadings,  if  the  case  had  been  commenced  by  others,  was 
immediately  made,  and,  so  far  as  practicable,  personal  ex- 
amination of  the  principal  witnesses,  accurate  study  of  the 
exact  questions  raised  by  the  pleadings,  and  a  thorough  and 
exhaustive  preparation  of  all  the  law  upon  those  questions. 
This  preparation  completed,  the  papers  were  laid  aside 

1  Parker,  Eeminiscenees,  111. 


OTHER  PARTICULARS  OF   PREPARATION.      143 

until  the  day  of  trial  approached.  At  that  time  a  thorough 
re-exaniination  of  the  facts,  law,  and  pleadings  had  to  be 
made.  lie  was  never  content  until  everything  which 
might  by  possibility  bear  upon  the  case  had  been  carefu'ly 
investigated  and  this  investigation  had  been  brought  down 
to  the  last  moment  before  the  trial. 

"  If  for  the  defence,  the  pleadings  were  first  examined, 
and  reconstructed,  if  in  his  judgment  necessary,  and  as 
careful  an  examination  of  the  law  made  as  in  the  other 
case. 

§  207.  "  In  his  preparation  for  the  argument  of  a  ques- 
tion of  law,  he  could  never  be  said  to  have  finished  it  until 
the  judgment  had  been  entered  by  the  court.  It  com- 
menced with  the  knowledge  that  the  argument  was  to  be 
made ;  and  from  that  time  to  the  entry  of  the  judgment 
the  case  never  seemed  to  be  out  of  his  mind ;  and  when- 
ever and  wherever  a  thought  appropriate  to  the  case 
occurred  to  him,  it  was  noted  for  use.  It  would  often 
happen  that  the  case  was  nearly  reached  for  argument  at 
one  term  of  the  court,  every  possible  preparation  having 
been  made,  and  the  brief  printed ;  yet  the  term  would 
end  and  the  case  not  come  on.  The  former  preparation 
then  made  but  a  starting-point  for  him.  At  the  next 
term  a  fuller  brief  appeared ;  and  this  might  happen  sev- 
eral times.  The  finished  brief  of  the  evening  had  to  be 
altered  and  added  to  in  the  morning ;  and  it  frequently 
went  into  the  hands  of  the  court  with  the  undried  ink 
of  his  last  citations.  If  after  argument  a  case  uncited 
then  was  discovered,  or  if  a  new  ^-iew  of  it  occurred  to 
him,  the  court  was  instantly  informed  of  it. 

§  208.  "  And  so  in  the  trial  of  a  case  at  nisi  prius. 
Every  intermission  called  for  a  full  examination  of  every 


144         CONDUCT  OUT  OF  COUKT. 

law-book  wliicli  could  possibly  bear  u})oii  questions  already 
before  the  court,  or  which  he  proposed  to  bring  before  it. 
No  difficulty  in  procuring  a  book  which  treated  upon  the 
question  before  him  ever  hindered  him;  it  was  a  mere 
question  of  possibility."  ^ 

§  209.    His  biograpiier  also  says  of  him  :  — 

"  In  the  preparation  of  a  case  he  left  nothing  to  chance, 
and  his  juniors  sometimes  found  themselves  urged  to  a 
fidelity  and  constancy  of  labor  to  which  they  had  not  been 
accustomed." 

§  210.  Let  the  young  lawyer  not  be  deceived.  The 
diligent  preparation  made  of  his  cases  by  Choate  is  far 
more  instructive  and  far  easier  to  emulate  than  the  elo- 
quence and  success  which  have  become  the  renown  of  the 
great  advocate. 

§  211.  Of  Aaron  Burr,  who  according  to  Mr.  Parton 
was  one  of  the  most  successful  of  all  lawyers,  the  latter 
says :  — 

"  In  preparing  his  cases  for  trial  he  was  simply  indefati- 
gable. While  there  was  an  authority  to  be  examined, 
while  there  was  evidence  to  be  procured,  while  there  was 
an  expedient  to  be  devised,  his  efforts  were  never  relaxed. 
And  he  gave  no  rest  to  his  adversary,  pursuing  him  .with 
notices,  motions,  and  appeals,  improving  every  advantage 
and  exhausting  all  means  of  annoyance ;  until  from  very 
weariness  and  despair  sometimes  the  enemy  has  capitu- 
lated. Burr  not  only  labored  himself  to  the  uttermost  of 
the  powers  of  man,  but  he  had  the  art  of  exacting  from  his 
assistants  an  equal  diligence.  There  was  no  resisting  his 
requirements.  Assistant  counsel  would  receive  notes  from 
him  at  midnight  when  they  were  asleep,  demanding  instant 

1  Brown's  Life  of  Choate,  3d  ed.  (Boston,  1870),  419-421. 


OTHER  PARTICULARS  OF  PREPARATION.     145 

replies,  which  obliged  the  drowsy  men  of  the  law  to  refer 
to  authorities  and  examine  i)ai)ers.  On  the  day  of  trial  he 
had  his  evidence,  arguments,  and  authorities  marshalled  in 
impenetrable  array.  Ev(;ry  possibility  had  been  provided 
for.  No  man  at  the  bar  could  ever  boast  of  discovering  a 
flaw  in  his  preparation,  or  of  carrying  a  point  against  him 
by  surprise.'  ^ 

§  212.  Non-preparation  or  hasty  preparation  against 
thorough  preparation  is  empirical  matched  with  scientific 
and  rational  knowledge,  and.  as  the  mob  against  regular 
troops.  Good  luck  and  accident  will  sometimes  lead  the 
unprepared  to  success,  but  in  the  average  he  will  be  beaten 
and  hardly  understand  why. 

§  213.  We  guard  our  student,  however,  against  conceiv- 
ing us  to  advise  him  that  all  things  can  be  anticipated  and 
provided  for.  We  mean  no  such  thing.  The  lawyer  ap- 
proaches the  trial  as  the  general  goes  to  the  field,  furnished 
with  knowledge  of  as  many  particulars  appertaining  to  the 
business  in  hand  as  can  be  had  in  order  to  act  on  his  own 
line  and  also  be  ready  out  of  this  knowledge  to  meet  with 
new  movements  of  his  own  any  of  his  adversary's. 

§  214.  We  have  one  thing  more  to  say  before  closing 
the  chapter.  No  adversary  is  so  weak  as  he  who  fumes 
with  impatience  at  any  opposition  or  hint  of  danger. 
Some  lawyers  seem  to  believe  that  Providence  sends  them 
nothing  but  good  cases,  and  resistance  infuriates  them  as 
though  it  were  an  attack  upon  the  very  foundations  of  all 
justice.  But  the  good  lawyer,  the  veteran  of  a  thousand 
fights,  the  cool-headed  champion  who  has  time  and  again 
won  against  odds,  relies  on  his  case  as  he  sees  it  from  his 
standpoint,  and  he  never  feels  sure  of  victory  before  he  has 

1  raitoii's  Life,  147. 
10 


14G        CONDUCT  OUT  OF  COURT. 

conquered.  His  exertion  and  vigilance  do  not  cease  till 
the  final  judgment.  His  own  ingenuity  teaches  him  tliat 
the  resources  of  the  other  side  may  have  been  under- 
estimated. He  leans  not  on  Providence  nor  good  luck, 
nor  on  the  manifest  justice  of  his  cause.  lie  stands  on 
the  law  and  evidence  as  he  believes  they  will  affect  judge 
and  jury.  He  essays  to  have  combinations  superior  to 
those  of  the  other  side. 


PLAN   OF   CONDUCT.  147 


CHAPTER  V. 


PLAN   OF   CONDUCT. 


§  215.  The  previous  stages  treated  in  our  Chapters  I. 
to  IV.  are  windings  or  bits  of  flat  which  permit  no  distant 
prospect.  Wiiile  the  genuine  lawyer  has  constantly  made 
an  earnest  eff(L)rt  to  do  all  the  different  items  properly  and 
to  co-ordinate  them  rightly  after  they  arc  done,  yet  their 
consistency  and  propriety  as  parts  of  the  whole  which  they 
constitute,  and  that  he  has  throughout  been  guided  by  prin- 
ciple, have  been  dimly  felt  rather  than  clearly  seen.  But 
in  the  subject  of  this  chapter  we  attain  the  point  of  high- 
est altitude  in  the  conduct.  From  this  eminence  one  can 
look  back  to  the  very  commencement,  rectify  any  depart- 
ure from  the  true  course,  and,  what  more  concerns  us  now, 
with  his  ultimate  purpose  at  last  in  distinct  view,  he  can 
dispose  the  particulars  and  direct  the  future  progress  in 
such  sort  as  to  lead  his  case  steadily  on  in  the  road  to  its 
most  favorable  event.  The  wise  plan,  in  the  light  which 
it  throws  upon  the  goal  and  the  way  thereto,  is  the  very 
essence  of  preparation.  It  is  the  special  and  the  highest 
business  of  the  leader.  When  the  success  of  such  pre- 
eminent advocates  as  Erskine  and  Choate  is  understood,  it 
is  found  to  be  due  to  the  wisdom  with  which  they  dis- 
cerned the  material  and  decisive,  rejected  the  unimportant, 
and  premeditated  their  line  of  action,  far  more  than  to  the 


148  CONDUCT  OUT  OF   COURT. 

effect  of  their  rciiowucd  eloquence.  It  is  not  to  be  for- 
gotten that  Scarlett  and  Mason,  who  cannot  be  ranked 
with  the  eloquent,  won  as  large  a  proportion  of  verdicts  as 
the  brilliant  orators. 

§  216.  Having  thus  outlined  the  importance  of  our 
particular  subdivision,  we  must,  before  going  on  \vith  its 
special  treatment,  again  remind  the  reader  how  awkward 
it  is  to  discuss  that  as  a  series  which  is  non-serial  in  its 
nature.  The  plan  of  managing  the  attack  or  defence,  and 
the  other  parts  of  preparation,  have  been  growing  together 
and  almost  inseparably  from  one  another.  The  lawyer  has 
caught  at  different  times  glimpses  of  its  several  features, 
and  his  conception  of  it  has  become  more  and  more  defi- 
nite. The  final  construction  is,  however,  the  last  work  of 
preparation,  when  the  counsel  feels  that  his  mastery  of  the 
case  is  thorough,  and  he  fully  grasps  every  point  of  offence, 
defence,  or  avoidance.  Then  and  not  till  then  is  he  to  put 
the  finishing  touches  to  that  which  has  been  almost  com- 
plete, it  may  be,  for  some  time. 

§  217.  The  general  before  he  takes  the  field  makes  a 
plan  of  the  camj^aign ;  find  so,  by  a  metaphor  which  will 
not,  we  hope,  be  deemed  too  bold,  we  apply  the  word 
"  plan  "  in  the  conduct  of  litigation.  In  the  talk  of  the  bar 
we  have  another  synonym.  Says  one  of  his  adversary,  "  I 
do  not  yet  see  what  is  his  line."  Thus  Choate  is  reported 
by  Mr.  Parker  as  saying  of  Professor  Webster's  counsel,  that 
they  "  should  settle  on  their  certain  line  of  defence,"  etc. 
The  word  which  we  use,  however,  is  by  far  the  best  that 
we  can  think  of,  and  is  much  superior  to  the  more  com- 
monly used  "  line,"  which  is  a  metaphor  almost  unintelli- 
gible, and  when  it  is  understood  has  a  sense  too  restricted 
for  our  purposes. 


PLAN  OF  CONDUCT.  149 

The  word  "  theory  "  is  used  ahiiost  synonymously.  Judges 
and  counsel  often  speak  of  the  plaintiff's  theory  and  the 
defendant's  theory.  But  the  right  theory,  that  is,  the  one 
which  includes  all  the  points  in  the  best  possible  way  for 
you,  taking  correct  note  of  the  strong  and  weak  parts  of 
your  side  and  those  of  the  adversary,  is  really  but  the  true 
view  of  the  facts  of  the  case,  or,  better  still,  their  explana- 
tion and  reconcilement,  and  this  theory  is  the  prerequisite 
of  the  good  plan. 

§  218.  The  essential  of  a  good  plan  of  conduct  is  that 
it  embrace  all  the  materials  of  your  side,  whether  they  be 
law  points,  combinations  of  fact,  or  grounds  of  excitation  ; 
such  materials  being  arrayed  in  the  proper  order  to  support 
your  own  intended  aggressive  or  defensive,  and  to  provide 
against  the  operations  of  the  adversary.  Or,  as  we  may 
define  more  shortly,  the  plan  of  conduct  is  your  intended 
method  of  using  the  results  of  your  preparation  to  vanquish 
the  adversary. 

§  219.  Napoleon  said,  as  we  have  already  quoted,  that 
the  whole  of  the  art  of  war  is  in  being  the  stronger  on  a 
certain  point.  The  whole  of  the  art  of  managing  litigation 
is  likewise  in  being  the  stronger  on  a  certain  point.  As 
we  wish  to  impress  the  student  with  the  saying  of  Napo- 
leon, we  will  illustrate  it  by  two  celebrated  examples.  At 
Marathon,  the  Persian  army  compared  with  the  Greeks 
was  as  the  sands  of  the  sea-shore.  The  Greek  conmiander 
came  out  confidently  from  behind  the  walls  and  offered 
battle  in  the  open  field.  He  did  not  oppose,  as  a  medi- 
ocre general  would  have  done,  his  best  troops,  but  he 
posted  his  slaves  against  the  formidable  Persians  and 
Sacians  in  the  centre,  who  were  the  chief  reliance  of  the 
enemy,  while  he  arrayed  on  each  wing  those  free-born 


150        CONDUCT  OUT  OF  COURT. 

volunteers  who,  as  we  are  told,  were  aflame  with  an  incred- 
ible ardor  of  fighting,  in  front  of  countless  hosts  of  undis- 
ciplined savages  placed  by  the  enemy,  not  anticipating  the 
novel  dispositions  of  Miltiades,  where,  as  it  was  thought, 
they  would  be  out  of  the  way.  The  Greeks  came  forward 
on  the  run,  and  the  two  armies  closed.  The  massive  Per- 
sian centre,  with  resistless  momentum,  broke  the  opposing 
line,  and  presently  was  chasing  fugitives  everywhere.  But 
the  Athenian  wings,  counting  the  numbers  of  their  adver- 
saries only  as  so  many  tokens  of  victory,  were  also  advan- 
cing, spreading  panic  and  rout  before  them.  The  Persian 
centre  found  that  it  had  spent  its  force  in  destroying  a  few 
of  its  feeble  opponents  and  in  trying  to  catch  tke  rest. 
Out  of  breath,  it  now  saw  two  conquering  Greek  armies  in 
the  rear,  as  it  were,  and  all  of  its  supports  going  to  pieces. 
The  Persians  and  Sacians  also  fled  ;  and  the  inmiense  horde 
ot  invaders  paused  not  in  their  camp,  but  were  beaten  to 
their  ships. 

§  220.  Many  generations  have  meditated  over  the  battle, 
and  they  cannot  discover  how  the  Greeks  could  have  done 
better.  Had  jNIiltiades  ranged  his  choice  men  aorainst  the 
centre  he  would  have  been  crushed  at  the  outset.  But, 
with  a  genius  to  which  all  subsequent  civilization  should 
do  reverenc.%  he  evaded  the  opposeless  colunm  and  indi- 
rectly overthrew  what  he  could  not  directly  encounter. 
His  plan  was  complete :  that  is,  it  rightly  marshalled  all 
of  his  strength  in  order  to  sustain  itself  and  withstand  the 
formation  and  designs  of  the  enemy.  Tlie  rapid  charge 
with  which  he  began  was  the  finishing  work  of  perfection, 
assuring  the  whole.  It  was  a  mask  that  concealed  his 
superb  dispositions,  and  it  gave  no  time  to  the  enemy  to 
conform  his  own  accordingly. 


PLAN   OF   CONDUCT.  151 

§  221.  We  next  give  the  plan  of  anotlier  battle,  —  that 
of  Epaniinoiulas  at  Leuctra.  Instead  of  evading  the  special 
strength  of  his  antagonist,  he  met  it  with  a  snperior  force  in 
front.  His  army  appears  to  have  been  smaller  in  numbers 
than  that  of  the  Spartans  and  their  allies.  The  Spartans 
had  been  the  terror  of  Creek  and  barbarian  ;  and  Epami- 
nondas,  rightly  judging  that  the  main  battle  would  be  of- 
fered by  these  redoubted  veterans,  held  back  the  rest  of 
his  men  and  bore  down  the  charging  Spartan  phalanx  by 
a  counter  charge  of  the  Sacred  Band,  backed  and  propelled 
by  a  colunm  of  fifty  shields  from  behind,  —  a  formation  as 
superior  to  that  of  his  enemy  as  an  ironclad  is  to  a  wooden 
ship  of  equal  guns. 

§  222.  The  circumstances  of  the  two  generals  show  the 
plan  of  each  to  have  been  proper.  Miltiades  was  right  to 
dodge  the  onset  of  the  massive  centi-e  in  order  to  take  it 
at  advantage  afterwards,  and  Epaminondas  was  right  in 
engaging  at  once  the  flower  of  his  enemy  in  direct  conflict. 

The  reader  nmst  not  consider  these  grand  examples  as 
more  than  distant  analogies.  Warfare  and  litigation  have 
their  several  spheres,  which  differ  perhaps  more  often  than 
they  are  alike.  It  is  only  profitable  to  touch  on  the  real 
correspondences  of  the  two  in  leading  principles.  And 
we  think  that  the  student  will  presently  see  a  good  use 
made  of  the  foregoing  treatment  of  plans  of  battle. 

§  223.  We  enforce  the  importance  of  the  subject  of  the 
chapter  to  the  practitioner  by  the  example  of  Choate,  of 
whom  it  is  said  that  "  He  had  a  plan  for  the  trial  of  every 
case,  to  which  he  clung  from  the  start  and  to  which  every- 
thing bent.  That  plan  often  appeared  late  in  the  case, 
perhaps  upon  filing  his  prayer  to  the  court  for  special  rul- 
ings to  the  jury.  "  ^ 

1  Brown's  Lilc,  3d  cd.,  421. 


152  CONDUCT   OUT   OF   COURT. 

§  224.  We  will  now  give  several  instances  of  plans,  be- 
ginning with  the  less  eoniplex  ones. 

"  In  ;in  insnranoc  case  we  were  for  the  plaintiff.  A  ves- 
sel had  been  insured  for  a  year,  with  a  warranty  that  she 
should  not  go  north  of  the  Okhotsk  Sea.  Within  the 
year  she  was  burned  north  of  the  limits  of  the  Okhotsk  Sea 
proper,  but  south  of  tlie  extreme  limits  of  some  of  that 
sea's  adjacent  gulfs.  The  defendant  set  up  that  there  was 
no  loss  within  the  limits  of  the  policy ;  and  numerous  wit- 
nesses had  been  summoned  by  both  parties ;  —  on  our  side, 
to  show  that  by  merchants  the  Okhotsk  Sea  was  consid- 
ered to  include  the  bays  and  gulfs ;  on  the  other  side,  to 
prove  the  contrary.  A  protracted  trial  was  expected,  and 
everything  had  been  prepared.  As  we  were  walking  to  the 
court-house,  he  said,  '  Why  should  we  prove  that  we  were 
not  north  of  that  sea  ?  Why  not  let  them  prove  that  we 
ivere ?  What  do  you  think  of  it ? '  'It  seems  to  be  the 
right  way,  certainly,'  said  I.  '  Let  us  do  it ;  open  the  case 
on  that  idea.'  I  did  so,  and  put  on  the  mate  to  prove  the 
burning  at  a  certain  time  witliin  the  year.  No  cross- 
examination  followed  ;  and  we  rested  our  case.  The  other 
side  was  dumfounded.  They  had  expected  that  we  should 
be  at  least  two  days  putting  in  our  case  on  the  other 
theory,  and  had  no  witnesses  at  hand.  They  fought  our 
plan  stoutly,  but  the  court  was  with  us,  and  they  were 
obliged  to  submit  to  a  verdict  in  our  ftivor.  The  case 
lasted  one  hour."  ^ 

§  225.  A  local  statute  allowed  a  certain  number  of  years 
of  adverse  possession  of  land  under  a  bona  fide  claim  of 
riglit  to  give  the  occupier  a  prescriptive  title,  and  the  de- 
fendant had  occupied  for  three  times  the  space  of  the  stat- 
utory term.     The  plaintiff  —  who  was  without  doubt  the 

1  Mr.  Bell,  as  quoted  in  Brown's  Life,  3J  ed.,  421,  422, 


PLAN   OF  CONDUCT.  153 

true  owner,  if  this  prescription  could  be  got  out  of  the 
way  —  brought  his  action  of  ejectment,  and  after  making 
out  'A  prima  facie  case  of  title,  as  he  easily  could,  closed  his 
evidence.  The  defendant  then  proved  his  long  occupation 
by  many  witnesses,  himself  among  the  number.  But  from 
the  cross-examination  knowledge  by  the  defendant  of  the 
plaintiff's  right  and  recognition  of  the  same,  at  a  time  not 
long  preceding  the  commencement  of  the  occupation,  wiis 
clearly  shown,  and  many  other  facts  were  brought  out 
which,  with  the  knowledge  and  recognition  mentioned, 
completely  disproved  the  alleged  bona  fides  of  the  adverse 
possession.  The  defendant's  counsel  seemed  to  have  antici- 
pated that  the  plaintiff  woidd  try  to  show  that  the  latter 
had  been  under  such  a  disability  as  would  prevent  the 
prescription,  and  to  meet  this  point  he  was  well  prepared. 
But  the  plaintiff's  lawyer  by  carefully  attending  to  his 
business  had  found  out  that  he  could  make  the  proof  upon 
which  he  relied  by  the  witnesses  of  the  adversary. 

§  226.  These  are  easy  plans,  but  such  are  not  therefore 
to  be  despised.  The  greatest  results  and  the  most  splendid 
successes  often  come  from  operations  so  simple  and  plain 
that  all  the  world  then  wonders  how  there  ever  could  have 
been  any  doubt  as  to  the  event  of  the  cause  which  has 
won.  The  plan  of  the  battle  at  Leuctra  was  no  more  in- 
tellectual exertion  than  that  last  narrated.  The  twenty- 
one  years'  adverse  occupation  looked  as  formidable  to  the 
community  as  the  Spartan  prowess  seemed  to  all  Greece ; 
and  yet  when  we  calmly  contemplate  what  was  done  to 
both  we  see  that  the  unexpected  victories  were  no  great 
reason  for  boasting.  An  over  confident  adversary  was 
merely  shown  in  each  case  that  Avhat  he  thought  was  his 
resistless  strength  was  but  a  shell  imposing  its  appear- 


154  CONDUCT  OUT   OF  COURT. 

ance  for  substance  upon  people  who  did  not  choose  to  look 
steadily. 

The  grand  clement  of  all  true  courage  —  that  great- 
ness of  mind  which  has  led  safely  out  of  what  seemed  to 
be  the  most  complicated  involvements  of  peril  —  is  just 
daring  to  contemplate  things  composedly  for  yourself,  and 
with  your  own  eyes.  To  join  this  hardy  inspection  and 
undaunted  gaze  to  the  character  which  never  acts  save 
with  an  intelligent  purpose,  is  to  have  the  basis  of  that 
genius  which  vanquishes  on  the  field  and  in  the  forum. 
Nine  tenths  of  what  other  people  take  to  be  difficulty  in- 
surmountable are  to  such  a  man  mere  shadows,  portentous 
only  in  the  imagination,  as  "  black  Vesper's  pageants  "  are 
to  children. 

§  227.  The  examples  of  simple  plans  which  we  have 
given  offered  opportunity  for  ingenuity  and  stratagem. 
But  there  are  many  cases  —  probably  a  large  majority  of 
those  contested  —  that,  after  the  maturest  study,  show  but 
a  single  issue,  which  is  conspicuous  and  unavoidable.  In 
these  the  plan  needs  no  study,  for  it  is  apparent  that  the 
contest  will  be  one  of  weight  or  strength  only,  and  not  of 
skill.  And  there  are  many  others  in  which  a  bundle  of 
controversies,  as  it  were,  will  often  be  found.  You  will 
seldom  see  a  case  invohing  much  property  or  important 
rights  turn  upon  a  single  question.  You  will  generally 
observe  that  both  the  plaintifi  and  the  defendant  instinct- 
ively seek  to  increase  each  his  favorable  chances  by  pre- 
senting more  than  one  point  to  be  decided,  and  by  making 
a  skilful  arrangement  of  these  points.  We  will  give  an 
instance  of  a  plan  involving  several  points. 

§  228.  An  old  man,  some  years  before  his  death,  made 
a  voluntary  conveyance  of  a  parcel  of  land  to  one  of  his 


PLAN  OF  CONDUCT.  155 

sons.  After  the  death  of  the  father,  intestate,  the  land 
was  sold  in  bankruptcy  as  the  property  of  the  son,  and 
was  bought  by  A.  At  this  sale  notice  was  given  by  an 
agent  of  tlie  creditors  of  the  father  that  they  claimed  the 
conveyance  to  the  son  was  void  because  of  his  mental  in- 
capacity at  the  time.  The  bankrupt  was  then  a  party 
defendant  to  a  bill  in  the  State  court  brought  by  these 
creditors,  and  he  had  answered  the  same,  insisting  on  the 
validity  of  the  deed.  The  sale  in  bankruptcy  and  the  pur- 
chase by  A  were  both  effected  before  the  final  decree  in 
the  bill.  A  had  been  put  into  possession,  and  the  repre- 
sentative of  the  intestate,  who  also  claimed  to  be  a  receiver, 
recognized  his  right  to  the  land.  Some  weeks  afterwards 
a  decree  was  had  in  the  bill  authorizing  a  sale  of  all  the 
property  of  the  intestate  at  private  sale  by  this  so-called 
receiver,  including  the  parcel  sold  in  bankruptcy.  The 
receiver,  who  had  been  pretending  to  hold  the  land  since 
the  sale  in  bankru])tcy  under  A  as  A's  agent,  now  sold  it 
without  A's  knowledge,  and  put  B,  his  purchaser,  into 
possession,  thereby  ousting  A.  The  receiver  affected  to 
be  acting  under  the  decree.  A  brought  ejectment  against 
B,  and  his  proof  is  arranged  here  to  show  his  plan. 

1.  He  proved  his  possession  under  his  purchase  in  bank- 
ruptcy. 

2.  He  then  showed  title  in  the  intestate ;  the  convey- 
ance of  the  latter  to  the  son  ;  and  the  deed  of  the  assignee 
to  himself ;  when  he  rested. 

3.  After  the  defendant  had  put  in  evidence  impugning 
the  deed  of  the  f^ither,  and  proof  of  his  title  under  the  re- 
ceiver's sale,  the  plaintiff  replied  with  strong  evidence  of 
mental  capacity ;  and  he  also  showed  that  all  of  the  heirs 
at  law  had,  in  a  writing  which  he  claimed  to  have  the 


156         CONDUCT  OUT  OF  COURT. 

force  of  their  deed,  conveyed  this  hmd  to  tlie  son  men- 
tioned before  it  was  surrendered  in  bankruptcy,  the  plaintiff 
maintaining  that,  even  if  the  deed  of  the  father  was  void, 
the  son  liad  acquired  all  the  interest  and  estate  of  the  heirs, 
on  whom  the  title  devolved  on  the  death  of  the  ancestor. 

4.  He  then  introduced  a  pertinent  record,  which,  as  he 
contended,  showed  that  the  appointment  of  the  alleged 
receiver  was  invalid,  certain  requisites  of  the  statute  apper- 
taining not  having  been  complied  with. 

§  229.  This  exhausted  every  resource  of  his  evidence. 
If  he  could  maintain  the  voluntary  conveyance,  —  that  is, 
that  the  ftither  was  competent  to  make  it,  —  his  purchase 
was  undoubtedly  good.  The  evidence  on  this  point  was 
very  contradictory. 

In  case  he  lost  here,  if  he  could  uphold  his  claim  that 
he  had  the  title  of  the  heirs,  he  would  be  on  his  feet  again 
and  on  firm  ground.  The  jury  might  believe  the  voluntary 
conveyance  to  be  void,  yet  if  they  were  told  from  the  bench 
that  the  writing  mentioned  was  a  valid  deed,  then  the 
position  of  the  defendant,  who  was  urging  the  invalidity  of 
the  voluntary  conveyance,  would  be  turned.  The  character 
of  this  writing  was  doubtful. 

But  if  the  plaintiff  failed  to  support  the  deed  of  the 
father  and  what  he  alleged  to  be  the  deed  of  the  heirs, 
though  he  could  no  longer  show  title  to  the  premises  in 
dispute,  he  could  still  redbver  on  his  prior  possession,  pro- 
vided he  established  the  invalidity  of  the  receiver's  appoint- 
ment. Here  he  appeared  impregnable.  The  appointment 
had  not  conformed  to  the  statutory  directions.  The  de- 
fendant was  therefore  a  mere  trespasser,  and  A  could 
recover  of  him  upon  proof  alone  of  his  possession,  such 
possession  being,  as  it  was,  prima  facie  legal. 


Ii 


PLAN   OF   CONDUCT.  157 

The  first  and  third  parts  of  the  phiii  were  added  last  in 
the  pi'eparation,  and  the  fourth  was  not  thought  of  until 
long  after  the  action  had  been  brought.  It  could  only  be 
made  to  ap[)ear  by  a  careful  perusal  of  a  vohiminous  and 
almost  illegible  record.  When  A  commenced  his  suit  he 
relied  only  on  the  validity  of  the  voluntary  deed  and  his 
purchase  before  the  decree  wliich  has  been  mentioned. 

§  230.  This  instance  lias  been  given  in  detail  because  it 
illustrates  nearly  all  the  uses  of  a  plan.  In  the  first  place, 
it  is  well  to  note  that  the  plaintiff's  case  involved  questions 
of  law  as  well  as  fact.  The  character  of  the  writing  claimed 
to  be  the  conveyance  of  the  title  of  the  heirs,  and  whether 
the  appointment  of  the  receiver  was  valid,  were  questions 
of  the  former  kind.  The  other  issues  were  for  the  jury, 
though  they  Avould  receive  instructions  as  to  them  from 
the  court.  Thus  they  would  be  directed  that,  if  the  father's 
conveyance  had  been  proved  to  be  invalid  on  the  ground 
stated  above,  then  it  was  for  them  to  inquire  if  the  plain- 
tiff had  established  his  prior  possession  by  credible  evi- 
dence, and  if  he  had,  they  should  give  it  effect.  So  too 
the  court  would  tell  them  to  allow  the  voluntary  convey- 
ance or  not,  according  to  the  proof. 

If  all  the  plaintiff's  positions  were  right,  he  had  two 
grounds  of  recovery,  to  wit,  his  prior  legal  possession  and 
the  title  of  the  intestate  conveyed  to  the  son.  If  the  de- 
fendant overcame  the  voluntary  deed,  then  the  plaintiff 
might  still  have  two  grounds  of  recovery,  that  is,  his  prior 
possession  and  the  writing  executed  by  the  heirs.  But  if 
he  failed  to  maintain  the  conveyance  of  the  father  and  that 
of  the  heirs  which  he  alleged,  yet  when  he  demonstrated 
the  invalidity  of  the  receiver's  appointment  he  was  sure  to 
succeed,  as  his  prior  possession  was  scarcely  disputed. 


158  CONDUCT  OUT  OF  COURT. 

§  231.  It  tliiis  becomes  plain  that  his  attack  upon  the 
appointment  of  the  receivor  was  his  most  important  posi- 
tion. Tf  he  made  this  good,  there  was  no  possible  chance 
left  to  the  adversary ;  if  he  failed,  the  controversy  was  at 
least  doubtful.  Perhaps  it  should  be  said  that  the  proba- 
bilities would  then  be  against  him.  In  military  language 
the  question  of  the  appointment  was  the  key  to  the  field. 
The  plaintiffs  counsel  was  therefore  right  in  more  carefully 
meditating  this  attack  than  any  other  part  of  his  prepara- 
tion. Many  passages  of  a  long  record  had  to  be  put 
together  rightly  in  order  to  show  that  the  requisites  of  the 
law  had  been  disregarded.  His  adversary,  having  assumed 
the  validity  in  question,  had  industriously  essayed  to  get 
the  preponderance  of  evidence  on  the  issues  as  to  the  title 
of  the  intestate.  He  was  struck  with  astonishment  when 
the  plaintiff's  plan  was  disclosed,  and  he  could  not  main- 
tain the  impugned  receivership. 

It  is  further  to  be  remarked  that  this  plan  not  only  com- 
bined every  resource  of  the  plaintiff,  but  it  had  the  further 
merit  of  masking  his  purpose  and  of  completely  anticipat- 
ing and  providing  against  the  case  of  the  adversary. 

§  232.  We  are  now  ready  to  classify  plans.  They  will 
be  found  to  be  fewer  than  the  reader  will  suppose  on  his 
first  reflection. 

There  are,  I  believe,  but  two  sorts  of  simple  plans,  that 
is,  of  plans  for  single  issues.  The  first  is  where  a  palpable 
issue  of  fact  or  law  is  presented  by  one  side  and  accepted 
by  the  other.  Thus  the  plaintiff  may  say  that  the  defend- 
ant owes  him  money  by  reason  of  a  contract  declared  upon. 
The  defendant,  if  he  deny  the  contract  alleged,  accepts  the 
issue  of  fact  tendered.  Here  the  party  having  the  superior 
evidence  at  the  trial  is  entitled  to  the  verdict.     Or  the 


PLAN   OF   CONDUCT.  159 

(lefendaiit  may  admit  the  contract  as  recited  in  the  plain- 
tiffs pleadings,  and  urge  that  it  appears  to  be  an  illegal 
one.  Thus  an  issue  of  law  is  i)resented,  which  will  be 
settled  from  the  statute-book  or  other  pertinent  authority. 
Both  of  these  instances  —  the  one  an  issue  of  fact  and  the 
other  an  issue  of  law  —  are  evidently  similar  in  nature  ; 
for  the  adversary  in  each  joins  in  the  first  issue  offered, 
neither  side  is  evaded  or  surprised,  and  the  contest  is  a 
premeditated  and  fair  trial  of  strength. 

§  233.  The  second  sort  of  simple  plan  is  where  the  issue 
presented  is  declined,  and  you  tender  another  on  which 
you  conceive  that  you  are  superior.  Its  effectiveness  may 
be  increased  by  secrecy.  Mr.  Parton  tells  of  Burr  :  "  He 
delighted  to  surprise  his  adversary,  to  lay  an  ambuscade 
for  him  and  carry  a  case  by  an  ingenious  stroke,  before 
the  other  side  could  recover  their  self-possession.  It  is  re- 
lated that  in  an  ejectment  suit  to  recover  a  valuable  house 
in  New  York  the  opposing  counsel  had  expended  their 
whole  strength  in  proving  the  genuineness  of  a  will,  sup- 
posing of  course  that  that  was  the  only  point  susceptible 
of  dispute.  What  was  their  surprise  to  find  that  Burr's 
main  attack  was  against  the  authenticity  of  an  ancient 
deed,  one  of  the  links  of  the  title  which,  ha^^ng  never  be- 
fore been  disputed,  had  been  provided  with  merely  formal 
proof.  The  jury  pronounced  the  deed  a  forgery,  and  Burr's 
client  lived  and  died  in  possession  of  the  ])ropcrty.  Two 
courts  have  since  pronounced  the  deed  authentic." 

This  kind  of  plan  resembles  the  turning  manoeuvres  of 
warfare  by  which  an  offered  battle-ground  is  rejected  and 
an  engagement  forced  somewhere  else. 

§  234.  And  it  may  apply  to  issues  of  law  as  well  as  to 
issues  of  fact.     I  once  witnessed  the   trial  of  a   case  in 


IGO        CONDUCT  OUT  OF  COURT. 

which  sonic  shippers  sought  to  recover  back  from  a  rail- 
way an  alleged  overcharge  by  the  latter.  The  suit  had 
been  brought  in  the  county  where  the  produce  was  shipped, 
while  the  charges  had  been  paid  in  a  distant  county  by  the 
factor  of  the  sliippers.  Tlic  couiicil  for  the  railway  de- 
murred on  the  ground  that  the  court  did  not  have  jurisdic- 
tion, as  it  had  been  enacted  that  suits  against  railways  be 
brought  in  the  county  wiierc  the  contract  had  been  made. 
He  argued  that,  if  the  railway  was  liable  for  the  overcharge, 
it  was  upon  the  contract  implied  by  the  law  to  refund  the 
illegal  exaction,  and  that,  as  this  overcharge  was  paid  in 
the  other  county,  the  contract  was  implied  or  made  therein. 
The  plaintiffs'  counsel  conceded  in  reply  that  he  might  have 
sued  in  the  county  last  mentioned  on  the  implied  con- 
tract, but  he  averred  that  the  law  had  implied  another 
contract  for  his  benefit,  which  was  that  the  raihvay  should 
not  charge  above  the  charter  rates,  and  that  this  was  im- 
plied or  made  in  the  county  where  the  produce  was  re- 
ceived by  the  railway ;  and  that  the  gist  of  his  action  was 
a  breach  of  tliis  last-mentioned  contract. 

Now  whatever  the  reader  may  think  the  law  to  be,  this 
dodge,  as  it  were,  of  the  plaintiffs'  counsel  will  illustrate 
that  issues  of  law  presented  may  be  evaded,  and  others 
tendered  in  their  stead. 

§  235.  So  much  for  simple  plans.  AYe  must  glance 
again  at  the  complex  plan.  It  embraces  more  than  one 
issue  or  point  of  controversy.  It  may  present  both  ques- 
tions of  fact  and  of  law,  and  it  may  directly  meet  the 
issues  raised  by  the  other  side,  or  dodge  them  as  we  have 
suggested.  The  same  plan  may  meet  the  issue  on  some 
of  the  points  of  controversy  and  evade  it  on  others.  The 
instance  of  the  ejectment  by  A  against  B  given  above  in 


PLAN   OF   CONDUCT.  161 

this  chapter  illustrates  this.  Such  plans  are  of  infinite 
range  both  in  copiousness  and  variety,  and  the  subject 
becomes  familiar  to  the  practitioner  only  after  long  ex- 
perience. 

§  23(5.  If  you  observe  veteran  lawyers  you  will  see  that 
generally  their  plans  are  more  straightforward  and  less 
complex  than  those  of  their  juniors.  The  simpler  the  plan 
can  be  made  the  better,  provided  nothing  important  be 
sacrificed.  The  lawyer  must  weigh  everything.  His  acu- 
men and  judgment  must  find  and  reject  all  the  trivial 
and  slight  and  include  all  the  good.  For  instance,  if,  when 
defending  a  surety,  he  could  support  by  evidence  the  ille- 
gality of  the  consideration  of  the  contract ;  that  the  debt 
had  been  paid ;  that  the  principal  had  been  indulged  by 
the  plaintiff"  to  the  detriment  of  the  surety ;  and  that  the 
right  of  action  is  barred ;  —  he  should  plead  every  one  of 
these  points  and  prepare  on  all  of  them.  He  is  wrong  to 
throw  away  a  single  chance  of  success.  But  if  he  can  only 
maintain  one  or  two,  let  him  dispense  with  the  rest.  The 
simplest  plan  that  is  exhaustive  of  all  your  resources  is  the 
desideratum.  It  is  more  easily  understood  and  retained  in 
mental  grasp,  and  therefore  more  surely  executed.  Noth- 
ing so  enfeebles  a  la^vyer  as  to  cultivate  a  tendency  to 
make  every  possible  point.  Reflection,  observation,  and 
practice  sliould  teach  him  the  difference  between  the  select 
positions  carefully  to  be  attended  to,  and  all  the  other  mat- 
ters which  will  be  rightly  disregarded.  But  we  would  not 
have  him  hypercritical  and  over-nice.  While  he  should 
discard  everything  of  unimportance  he  ought  not  to  be  too 
severe  a  judge  against  his  client.  He  should  give  him  the 
benefit  of  all  reasonable  doubts,  to  use  the  language  of  the 

criminal  law. 

11 


162  CONDUCT  OUT   OF   COURT. 

§  237.  We  must  especially  note  the  attention  that  weak 
points  deserve.  It  often  requires  great  exertion  and  extras 
ordinary  tact  to  cover  them.  Thus  a  policy  on  the  stock 
of  a  mercantile  partnership  had,  after  being  assigned,  been 
sent  to  another  State  for  collection,  where  certain  creditors 
of  the  firm  —  which,  bear  in  mind,  had  failed  in  the  mean 
time  —  contested  the  validity  of  the  assignment  as  against 
them.  The  counsel  of  the  assignee,  who  under  the  State 
decisions  had  to  show  that  the  assignment  was  for  a  good 
consideration  and  after  the  occurrence  of  the  loss,  dis- 
covered that  his  client  once  held  a  demand  against  the 
firm  for  which  he  took  the  individnal  note  of  one  of  the 
members  and  that  the  consideration  of  the  assignment  was 
the  payment  of  this  note.  The  contesting  creditors  were 
not  aware  of  this  fact.  They  were  confident  that  they 
could  prove  the  assignment  had  been  made  after  the  ser- 
vice of  their  garnishment,  and  thus  get  rid  of  it.  In  this 
they  were  mistaken,  as  the  counsel  for  the  assignee  had 
ascertained  from  the  subscribing  witne -ses  to  the  assign- 
ment and  from  certain  agents  of  the  insurance  company  to 
whom  the  policy  had  been  presented  after  the  assignment. 
But  if  he  called  these  subscribing  witnesses  they  might 
under  cross-examination  prove  what  was  the  consideration 
of  the  assignment,  that  fact  being  within  their  knowledge. 
This  would  be  prima  facie  to  place  his  client  in  the  pre- 
dicament of  a  separate  creditor,  who  could  take  nothing  of 
the  firm  assets  until  all  of  the  firm  debts  Avere  paid.  He 
provided  this  way  around  tlie  difficulty.  The  assignors 
and  subscribing  witnesses  residing  outside  of  the  juris- 
diction, he  availed  himself  of  the  rule  established  by  the 
decisions  that  he  could  prove  the  execution  of  the  assign- 
ment by  proving  their  handwriting.     The  assignment  re- 


PLAN   OF   CONDUCT.  163 

cited  that  it  was  for  value,  wliich  under  the  authorities 
was  prima  facie  proof  of  the  consideration  required  to  be 
shown.  He  proved  tlie  handwriting,  and  also  tliat  the  as- 
signment had  been  seen  by  thcni  before  the  garnishment 
was  sued  out,  by  witnesses  who  knew  nothing  of  the  con- 
sideration. So  the  ugly  adverse  fact  was  never  disclosed 
to  the  enemy,  and  the  assignee  collected  the  policy. 

§  238.  But  then  you  have  weak  points  that  it  is  im- 
possible to  conceal,  and  if  you  cannot  defend  them  you 
will  lose  perforce.  We  will  make  one  of  the  most  cele- 
brated of  American  cases  serve  as  an  illustration.  The 
Commonwealth  had  provided  almost  irrefragable  proo# 
that  the  human  remains  discovered  in  a  furnace  which  had 
been  in  the  exclusive  use  of  Professor  Webster  since  the 
disappearance  of  Dr.  Parkman,  Avith  the  murder  of  M'hom 
the  former  stood  charged,  were  those  of  the  latter.  The 
counsel  of  Webster  wished  to  associate  Choate.  The  latter 
was  convinced  of  the  impolicy  of  contending  that  Parkman 
had  not  died  in  the  presence  of  Webster  at  the  time  and 
place  laid,  and  he  could  not  be  persuaded  into  adopting 
the  proposal  of  the  counsel  to  prove  that  the  former  was 
living  for  some  while  afterwards  and  had  been  seen  at 
many  different  times  in  the  streets,  —  a  fact  which  was 
denied  by  his  own  family,  the  people  of  all  the  world  to 
know  it  if  it  existed.  The  great  lawyer  insisted  that  the 
killing  should  be  virtually  admitted.  But  the  defendant, 
his  advisers,  and  his  friends  were  set  against  this.  They 
did  not  employ  Choate ;  and  they  rested  the  defence  upon 
disputing  the  identity  of  the  remains  and  any  participation 
of  Webster  in  the  killing.  They  ran  their  heads  against  a 
stone  wall,  and  the  prisoner  died  at  last  under  the  hands 
of  justice,  having  confessed  the  homicide. 


164  CONDUCT  OUT  OF  COURT. 

§  239.  Now  let  us  hear  wluit  was  Choate's  plan.  It  is 
given  in  his  own  words,  in  a  subsequent  conversation  with 
Judge  Lord  :  — 

"  There  was  but  one  way  to  try  tliat  case.  When  the 
Attorney  General  was  opening  .  .  .  and  had  come  to  the 
discussion  of  the  identity  of  the  remains,  .  .  .  the  prison- 
er's counsel  should  have  risen  and  said,  substantially,  that, 
in  a  case  of  this  importance,  of  course  counsel  had  no  right 
to  concede  any  point,  or  make  any  admission,  or  fail  to 
require  proof,  and  then  have  added,  '  But  we  desire  the 
Attorney-General  to  understand,  upon  the  question  of  these 
remains,  that  the  struggle  will  not  be  there.  Assuming  that 
Dr.  ParlvHum  came  to  his  death  within  the  laboratory  on 
that  day,  we  desire  the  government  to  show  whether  it 
was  by  visitation  of  God,  or  whether,  in  an  attack  made 
by  the  deceased  upon  the  prisoner,  the  act  was  done  in 
self-defence,  or  whether  it  was  the  result  of  a  violent  alter- 
cation. Possibly  the  idea  of  murder  may  be  suggested, 
but  not  with  more  reason  than  apoplexy,  or  other  form  of 
sudden  death.  As  the  prisoner  himself  cannot  speak,  the 
real  controversy  will  probably  be  narrowed  to  the  alter- 
native of  justifiable  homicide  in  self-defence,  or  of  man- 
slaughter by  reason  of  sudden  altercation.' 

"  He  then  said,  *  The  difficulty  in  that  defence  was  to 
explain  the  subsequent  conduct  of  Professor  Webster,'  and 
he  proceeded  ...  to  show  that  the  whole  course  of  the 
accused,  after  the  death,  could  be  explained  by  a  single 
mistake  as  to  the  expediency  of  instantly  disclosing  what 
had  happened ;  that  hesitation,  or  irresolution,  or  the  de- 
cision, '  I  will  not  disclose  this,'  adhered  to  for  a  brief  half- 
hour,  might,  by  the  closing  in  of  circumstances  around  him, 
have  led  to  all  that  followed.    Having:  concealed  the  occur- 


PLAN   OF   CONDUCT.  165 

rencc,  lie  was  obliged  to  dispose  of  tlic  remains,  and  with 
the  facilities  afforded  by  his  professional  position."  ^ 

It  is  now  a  wonder  that  the  plan  was  not  adopted. 
Though  it  never  had  existence  beyond  a  proposal  which 
was  scornfully  rejected,  we  believe  that  it  will  add  as 
much  to  the  future  renown  of  Choatc  as  any  of  his  great- 
est orations. 

§  240.  The  last  is  an  illustration  really  of  a  right  theory 
rather  than  of  what  we  mean  by  a  plan.  Still  it  is  so  close 
to  our  present  subject  as  to  be  in  place  here.  For  if  the 
plan  you  adopt  is  founded  on  a  bad  theory,  it  must  needs 
be  bad. 

There  are  difficulties  which  often  confront  you  for  a  long 
time,  but  which  you  can  at  last  get  around.  Thus  a  plain- 
tiff" had  no  other  means  of  making  good  the  most  of  his 
account  than  by  a  witness  who  had  been  his  clerk  when  it 
was  made,  and  who  was  now  in  the  defendant's  employ- 
ment. The  facts  had  to  be  corkscrewed  out  by  a  long 
examimition,  and  by  reason  of  the  witness's  stubborn  re- 
sistance the  plaintiff's  case  was  left  with  such  feeble  sup- 
port that  the  jury  disagreed.  But  the  plaintiff"  had  found 
his  deliverance.  When  the  witness  was  turned  over  for 
cross-examination  the  opposite  counsel  began  by  asking 
him  to  point  out  the  items  which  his  employer  disputed. 
In  tlie  presence  and  hearing  of  the  defendant,  the  witness 
in  reply  to  tlie  question  selected  out  of  the  long  bill  of 
particulars  only  four.  These  the  plaintiff"  could  prove  by 
other  testimony.  At  the  next  trial  he  proved  the  question 
and  hi)w  it  was  answered  in  the  hearing  of  the  defendant, 
and  this  was  held  by  the  court  to  be  an  admission  by  the 
latter  of  all  the  items  but  the  four.     Then  having  proved 

1  Neilson,  Memories  of  Rufus  Choate,  18,  19. 


-[G6  CONDUCT   OUT  OF   COURT. 

tliG  four,  the  plaintifT  rested.  This  time  the  defendant 
coukl  not  escape. 

§  241.  We  have  not  space  for  furtlier  ilhistrationo  But 
we  remind  you  that  you  ought  to  conceal,  if  you  can,  tlie 
existence  of  your  weak  points,  by  reticence,  bluflf,  feints,  or 
whatever  ruse  will  serve  your  turn  ;  and  when  conspicuous 
difficulty  is  most  menacing  and  your  adversary  swears  that 
he  has  you  on  the  hip,  look  about  you  in  tranquil  search, 
and  you  will  often  find  safe  retirement  or  a  sure  road  to 
victory.  You  must  be  fully  aware  of  your  necessities,  of 
your  resources,  and  of  the  operations  of  the  adversary,  sure 
in  applying  legal  rules  and  evidence  which  make  for  you 
and  quick  to  find  expedients  and  shifts  to  compensate  for 
the  advantages  which  you  must  sacrifice.  All  this  is  an 
unknown  art  to  many  of  the  profession.  Tt  is  well  for  the 
young  lawyer  to  get  an  inkling  of  it  at  the  outset  of  his 
career.  He  is  not  to  balk  the  right  by  concocting  fraud. 
But  he  ought  to  learn  that  the  most  righteous  cause  often 
requires  to  be  fenced  by  wiles  or  rescued  by  stratagems, 
and  these  then  become  the  instruments  of  justice. 

§  242.  Now  as  to  what  we  have  called  the  third  ele- 
ment of  litigation.  We  may  remark  that  it  often  runs  into 
the  other  two,  and  we  have  therefore  now  and  then  treated 
it  unconsciously  in  the  foregoing ;  and  we  must  in  sev- 
eral places  later  on,  go  over  some  of  its  remaining  details. 
We  begin  here  by  distinguishing  between  persons  and 
actions  as  causes  of  favor  or  disfavor.  The  former  di- 
vision is  much  more  easy  to  handle  than  the  latter.  We 
know  at  once  the  different  people  who  as  parties  attract 
or  repel  sympathy.  Thus  a  counsel  for  a  non-resident 
woman  suing  a  rich  defendant  was  right  to  avail  himself 
of  the  first  opportunity  to  prove  that  his  client  was  born 


PLAN   OF   CONDUCT.  167 

in  the  county  where  the  case  was  trying.  The  widow  who 
brings  a  civil  action  for  the  homicide  of  her  husband,  es- 
pecially if  she  is  poor  and  has  several  children,  is  generally 
a  favorite  with  juries.  But  your  client  may  belong  to  one 
of  the  preferred  classes,  and  yet  his  part  in  some  trans- 
action arouses  the  feelings  of  people  against  him.  In- 
gratitude, coldness  towards  friends,  avaricious  demands, 
fraudulent  or  oppressive  conduct,  disregard  of  the  common 
sensibilities,  —  such  are  some  only  of  the  things  we  are  now 
considering  which  may  seriously  damage  a  cause  otherwise 
strong.  The  use  to  be  made  of  the  predilections  for  or 
against  certain  persons  or  actions  just  mentioned  is  an  im- 
portant lesson.  We  take  for  granted  that  the  preparation 
has  given  all  of  them  in  the  particular  case  due  attention. 

§  243.  How  will  you  have  them  efficient  when  they 
make  for  you  ?  and  how  will  you  break  their  force  when 
they  are  opposed  ?  The  answer  to  the  first  question  is 
found  mainly  in  two  particulars  :  you  must  support  them 
by  at  least  an  appearance  of  merit  in  law  or  fact,  and  you 
must  abstain  from  urging  them  immoderately  and  too  zeal- 
ously. If  you  stand  upon  them  alone  the  instructions  of 
the  judj,e  will  generally  be  decidedly  adverse,  and  the  jury 
may  be  ashamed  to  follow  their  inclinations.  Even  if  you 
win  and  hold  against  the  motion  for  a  new  trial,  the  court 
of  errors  may  set  aside  the  verdict  with  such  determined 
promptness,  or  even  with  such  directions,  that  you  arc 
deprived  of  all  hope.  You  must  learn  the  art  of  giving 
prominence  to  the  legal  and  evidential  resources  of  your 
case  while  you  seem  to  allow  the  others  to  put  themselves 
forward  of  their  own  accord. 

§  244.  We  will  give  an  example  of  the  good  effect  of 
moderation  in  attacking  a  transaction  which  was  closely 


1G8         CONDUCT  OUT  OF  COURT. 

akin    to    forgery,  —  one    of    the    most    disreputable    of 
crimes. 

A  lady  of  respectable  standing  had  brought  suit  on  a 
promissory  note.  The  plea  was  the  statute  of  limitations, 
with  the  further  allegation  that  the  date  of  the  note  had 
been  altered.  The  plaintiffs  counsel  claimed  that  his  cli- 
ent's character  was  wantonly  impugned  by  the  defence, 
and  he  seemed  to  regard  this  position  as  his  trump  card. 
The  defendant's  evidence  was  circumstantial,  making  a 
weighty  case,  but  not  conclusive  if  the  plaintiff  s  honesty 
was  unassailable.  If  there  had  been  alteration  it  was 
fraudulent,  and  to  establish  such  an  alteration  would  have 
under  the  code  prevented  a  recovery,  even  if  the  note  was 
not  barred.  The  counsel  for  the  defendant,  with  some 
risk  of  not  being  able  to  establish  clearly  the  date  for  which 
he  contended,  and  thus  support  the  plea  of  the  statute  of 
limitations,  disclaimed  any  intention  to  allege  that  the  al- 
teration was  fraudulent.  This  good  lady,  he  urged,  merely 
did  what  she  thought  was  prudent  and  right ;  that  is,  she 
tried  to  keep  her  note  from  going  out  of  date.  He  got 
the  verdict.  The  foreman  told  me  that  all  the  jury  at  first 
leaned  to  the  plaintiff,  deeming  the  plea  almost  libellous, 
but  in  consequence  of  the  disclaimer  mentioned  they  could 
consider  the  evidence  without  bias,  and  at  the  last  they 
unanimously  agreed  that  the  plaintiff  had  altered  the  note 
with  a  dishonest  purpose. 

§  245.  We  insist  especially  that  you  do  not  press  your 
advantages  too  hard.  Here  is  perhaps  the  best  place  to 
find  good  examples  of  the  effectiveness  of  that  suggestive 
understatement  which  Scarlett  insists  upon  in  the  speaker. 
If  you  collect  a  great  store  of  facts,  and  make  an  elaborate 
presentation  by  your  evidence  of  the  acts  which  you  would 


PLAN  OF   CONDUCT.  169 

have  the  jury  stigmatize,  you  are  always  in  danger,  except 
in  eases  of  the  most  marked  and  pronounced  type,  of  ap- 
pearing to  persecute,  and  of  exciting  thereby  sympathy  for 
the  persons  assailed. 

§  246.  One  of  the  most  delicate  problems  of  all  conduct 
is  how  to  guard  those  parts  of  your  case  which  are  exposed 
to  the  censure  of  the  feelings.  It  is  all-important  that  you 
fully  understand  your  Aveakness.  Of  course  you  will  care- 
fully look  for  all  the  e\4dence  that  will  color  the  particular 
transaction  in  your  favor  or  dissipate  an  adverse  misappre- 
hension of  it.  You  will  be  wise  to  enlist  a  stronger  preju- 
dice or  passion  on  your  side,  as  the  defendant,  in  the 
illustration  just  given,  vanquished  the  popularity  ordinarily 
attending  the  case  of  a  lady  by  adroitly  setting  against  it 
the  abhorrence  with  which  fraud  is  universally  regarded. 
Or  you  may  form  an  alliance  with  a  strong  party  or  a  pop- 
ular cause.  A  decisive  effort  somewhere  else,  raising  an 
issue  which  makes  irrelevant  the  point  you  fear,  or  which 
draws  off  the  force  destined  for  its  assault,  may  be  your 
policy.  Sometimes  a  persistent  ignoring  is  all  that  you 
can  do.  I  have  seen  this  shift  succeed  against  great  su- 
periority on  particular  material  points.  Especially  do  we 
adAHse  you  to  add  to  and  strengthen  your  evidence  indus- 
triously, as  the  confidence  of  the  adversary  in  his  emotional 
ascendency  will  usually  make  him  negligent. 

§  247.  The  general  conclusion  to  be  derived  from  our 
discussion  is,  that  in  forecasting  your  operations  you  must 
be  as  much  alive  to  the  effect  which  the  facts  on  each  side 
v,''i]\  work  upon  the  feelings  as  you  are  to  the  maintenance 
of  your  propositions  of  law  and  evidence.  Often,  as  we 
have  already  hinted,  your  case  will  find  the  jury  indifferent. 
But  there  is  a  large  proportion  of  serious  litigations — per- 


170  CONDUCT   OUT   OF   COURT. 

haps  more  than  a  fourth  —  in  which  emotion  is  a  potent 
factor.  It  often  turns  the  scale  unconsciously  to  the  jury 
and  lookers  on,  who  all  are  sure  that  the  verdict  is  fairly 
won  by  the  evidence.  It  is  the  business  of  the  lawyer  to 
discern  these  subtile  influences,  and  also  to  know  the  orbit 
of  manifest  excitement.  The  required  talent  will  hardly 
ever  rise  to  tlie  sure  vision  witli  wliicli  he  detects  legal  and 
evidential  weight ;  it  will  rather,  at  its  highest,  belong  to 
what  we  denominate  instinct.  Yet  the  talent  can  be 
trained,  as  the  amendment  of  the  born  orator  shows. 
And  we  now  leave  the  special  treatment  of  the  subject,  by 
saying  you  nmst  not  rest  in  marshalling  the  evidence  and 
points  of  law,  however  resistlessly  you  may  seem  to  put 
tliem.  Scheme  also  to  have  the  feeling  excited  by  the 
case  help  your  side. 

§  248.  We  have  in  the  foregoing  brought  out  the  gen- 
eral idea  of  Plan  of  Conduct.  We  are  now  to  go  through 
a  series  of  minor  parts  of  the  subject  which  are  of  great 
concern  to  the  practitioner. 

We  begin  with  secrecy,  tlie  value  of  which  we  have 
already  hinted.  No  prudent  general  will  in  ordinary  cir- 
cumstances betray  to  tlie  enemy  his  intended  movements. 
In  litigation,  secrecy  is  not  so  important.  There  are  many 
controversies  wliere  a  practising  lawyer  will  see  everything 
material  belonging  to  either  side  at  the  first  glance.  Tlie 
issues  are  so  simple,  the  law  so  plain,  and  the  evidence  so 
manifest,  that  it  is  idle  to  essay  concealment.  But  in 
cases  of  a  different  kind,  where  the  facts  are  manifold  and 
the  governing  law  hard  to  find,  and  where  there  are  evi- 
dently great  stores  of  evidence  at  the  command  of  tlie  ad- 
versary, you  will  be  blind  and  foolish  to  publish  your  plan. 
Your  case  is  entitled  to  all  the  advantage  which  you  can 


PLAN   OF   CONDUCT.  171 

lawfully  Ann.  You  are  not  to  forge  precedents  to  dupe 
the  judges  or  to  suborn  witnesses  to  hoax  the  jury  ;  but 
your  client  can  rightfully  exact  of  you  that  you  procure  for 
him  the  most  favorable  judgment  possible  under  the  law 
as  the  judge  holds  it  to  be,  and  the  evidence  as  the  jury 
see  it.  You  may  obtain  by  honest  argument  a  decision 
from  even  a  respectable  court  of  errors  which  another  will 
be  in  haste  with  good  reason  to  reverse.  You  may  get  a 
verdict  which,  though  it  is  sustained  by  the  proofs  adduced, 
is  yet  decidedly  against  the  weight  of  that  which  could  be 
adduced.  You  should  get  this  decision  or  verdict,  provided 
you  get  them  honestly.  If  you  succeed  by  superior  con- 
duct you  have  done  right,  though  the  real  right  of  the  case 
is  against  you.  You  will  hardly  ever  have  these  victories 
in  the  cases  last  described  except  by  keeping  your  cardinal 
propositions  of  law  and  fact  to  yourself. 

§  249.  But  there  are  cases  where  you  do  well  to  dis- 
close your  plan.  Thus  Choate  said  before  the  trial  of  Pro- 
fessor Webster  that  the  counsel  of  the  latter  should  put 
forth  some  theory  of  defence  in  order  to  allay  the  rising 
popular  excitement.  This  is  an  instance  where  weakness 
and  infirmity  might  possibly  have  been  helped  by  the  pub- 
lication advised.  Sometimes  you  will  find  your  hand  so 
strong  that  it  will  appall  your  adversary  when  he  sees  it. 
This  is  often  the  case  when  you  are  arrayed  against  fraud, 
oppression,  or  the  other  instances  of  baseness  which  draw 
upon  themselves  the  instant  condenmation  of  all  honest 
judges  and  jurors. 

§  250.  The  prudent  general  secures  beforehand  his  way 
of  retreat  to  be  used  in  case  of  disaster.  Every  device 
possible  to  diminish  risk  and  uncertainty  must  be  resorted 
to  in  the  conduct  of  litigation,  and  the  preparation  should 


172  CONDUCT   OUT   OF   COURT. 

look  beyond  the  rencounter,  and  provide,  if  it  can  be  done, 
the  means  of  obtaining  a  new  trial  when  one  has  lost.  As 
the  lawyer  becomes  more  and  more  familiar  with  the  case, 
he  \^'ill  find  suggested  along  its  wliole  track  how  his  adver- 
sary or  even  the  judge  maybe  surprised  into  some  action  to 
serve  the  purpose  just  mentioned.  Perhaps  he  is  aware  of 
certain  peculiar  views  of  the  law  entertained  by  one  or  the 
other  which  he  may  turn  to  account.  The  author  thinks 
from  his  own  observation  that  the  most  of  his  brethren, 
even  when  conducting  important  cases,  trust  rather  to  their 
o^^ii  ingenuity  during  the  trial  to  provide  a  ground  for  an- 
other, than  to  a  rightly  premeditated  plan.  It  is  far  bet- 
ter to  reinforce  the  ingenuity,  however  great,  exercised 
during  the  short  time  that  the  court  is  engaged  Avith  the 
case,  with  the  usually  greater  results  of  long  deliberation 
made  beforehand.  During  the  trial  the  mind  is  too  in- 
tensely occupied  with  the  principal  business  to  attend 
much  to  anything  else. 

§  251.  We  will  now  give  two  examples  of  premeditat- 
ing a  ground  for  a  new  trial. 

While  A,  a  young  lawyer,  was  preparing  an  ejectment 
for  the  plaintiff,  he  apprehended  that  it  would  be  attempted 
to  examine  himself  as  a  witness  against  his  client.  This 
was  because  of  the  connection  of  the  opposite  counsel  with 
a  case  tried  not  long  before  and  recently  reported,  as  it  had 
been  carried  to  the  court  of  errors,  in  which  case  this  coun- 
sel had  gained  a  great  victory  by  making  a  witness  of  the 
plaintiff's  lawyer,  who  testified  without  objection  that  he 
and  his  client  did  not  have  authority  to  use  the  lessor's 
name.  A  had  two  demises  in  his  declaration.  It  is  un- 
necessary to  narrate  the  facts  which  made  him  desire  that 
the  defendant  should  offer  him  as  a  witness.     Suffice  it  to 


PLAN   OF   CONDUCT.  173 

say  that  A  felt  sure  that  his  testimony  would  not  put  him 
in  worse  plight,  and  he  could  think  of  no  surer  ground  of  a 
new  trial  in  the  event  of  an  adverse  verdict,  an  event  which 
he  feared  because  of  his  inexperience  and  his  opponent's 
ability.  As  he  would  waive  his  point  by  not  objecting, 
he  resolved  to  make  a  frivolous  objection  which  he  believed 
would  not  be  sustained  by  the  court.  On  the  trial,  after 
the  plaintiff  made  out  \ih  p7'imaf<tcie  case,  supporting  only 
one  of  the  demises  laid,  and  had  closed,  the  defendant's 
counsel  offered  A  as  a  witness  to  prove  that  the  suit  was 
brought  for  the  exclusive  benefit  of  the  particular  lessor 
whom  he  believed  to  be  the  real  plaintiff,  although  the 
demise  from  him  had  not  been  supported  by  proof,  and 
against  whom  the  defendant  had  a  good  defence ;  and 
the  offered  witness  objected,  urging  that,  as  title  had  been 
shown  in  the  other  lessor,  this  was  an  attempt  to  prove  it 
out  by  the  mere  opinion  of  a  lawyer.  The  objection  being 
unmeaning  was  overruled  with  some  warmth,  and  A  was 
forced  to  tell  that  the  last-mentioned  lessor  was  his  real 
client. 

There  was  a  hard  contest  upon  the  evidence.  The  de- 
fendant did  not  connect  the  lessor,  for  whose  sole  benefit 
he  had  proved  by  the  lawyer,  as  recited,  that  the  suit  was 
proceeding,  with  his  defence  by  any  other  evidence,  and 
he  got  a  verdict.  But  the  court  did  not  hesitate  to  grant 
the  plaintiff  a  new  trial  when  it  was  argued  that  the 
admission  of  tlie  evidence  had  violated  the  rule  of  law 
protecting  confidential  comunications  between  client  and 
attorney.  Had  A  objected  on  the  ground  which  he  ex- 
pected to  use  in  support  of  his  motion  for  a  new  trial,  —  as 
the  rule  in  that  State  now  requires,  —  the  excellent  judge 
would  have  at  once  sustained  the  point,  aijd  another  per- 


174  CONDUCT   OUT   OF   COURT. 

son  present  who  would  have  been  a  competent  witness 
would  surely  have  been  thought  of  by  the  defendant. 
Tliis  witness  at  the  next  trial  was  in  a  distant  State. 
The  judge  was  led  into  his  mistake  by  too  quickly  assum- 
ing that  tlie  court  of  errors  had  decided  in  the  case  men- 
tioned that  the  counsel  was  compellable  to  testify.^  Had 
the  real  incompetency  been  stated  this  delusion  would 
have  vanished,  and  had  the  other  witness  been  examined 
an  adverse  verdict  could  hardly  have  been  set  aside. 
The  plaintiff  at  last  recovered  his  land. 

§  252.  The  second  example  is  more  ingenious.  I  gath- 
ered it  from  an  argument  which  I  heard  in  the  Supi-eme 
Court  of  Georgia  between  two  of  the  ablest  and  cunning- 
est  lawyers  that  I  ever  knew.^ 

The  statute  permitted  a  complainant  in  a  bill  in  equity 
to  waive  discovery  and  enacted  that  after  such  waiver  the 
defendant's  answer  was  not  evidence.  In  this  case  the 
complainant  —  who  was  a  remainderman  —  had  exhibited 
his  bill  against  the  tenant  for  life,  alleging  a  forfeiture  of 
the  life  estate  by  reason  of  the  waste  of  the  defendant. 
All  in  the  bill  that  could  be  said  to  be  the  waiver  men- 
tioned was  the  statement  that  the  complainant  could 
prove  his  allegations  without  the  oath  of  the  defendant. 
The  case  had  been  tried  by  a  jury,  as  is  the  custom  in 
Georgia.  The  counsel  for  the  tenant  for  life  had  con- 
tended below,  as  his  adversary  stated,  that,  discovery 
having  been  waived  as  to  the  particular  allegations  just 
mentioned,  some  of  these  being  material  and  not  having 

1  Adams  v.  McDonald,  29  Ga.  571.  Stephens  v.  llatto?:,  37  Ga.  289, 
is  the  case  from  which  the  example  given  in  the  text  is  taken. 

2  Woodward  v.  Gates,  38  Ga,  205.  William  Dougherty  and  B.  H.  Hill 
were  the  counsel  opposed. 


PLAN   OF  CONDUCT.  175 

been  proved,  the  complainant's  case  was  not  made  out. 
But  under  the  instructions  of  the  court  the  jury  had  found 
against  the  defendant.  He  moved  for  a  new  trial ;  and  it 
was  the  assignment  as  error  of  the  judgment  refusing  the 
motion  which  I  heard  argued.  Several  points  were  dis- 
cussed with  zeal  and  ability ;  but  a  new  trial  was  granted 
the  tenant  for  life  on  the  ground  more  strongly  pressed 
than  any  other,  that  discovery  had  not  been  waived  ex- 
pressly, as  the  judges  held  such  waiver  must  be,  and 
therefore  his  answer  was  evidence,  and  it  had  not  been 
overcome  by  two  Avitnesses.  There  was  an  apparent,  but 
not  a  real,  waiver  of  discovery.  This  resistless  attack  upon 
the  defendant  in  error  was  masked  under  the  ground  in 
the  motion  that  the  verdict  was  against  the  evidence. 
The  counsel  for  the  life  tenant,  though  wonderfully  quick- 
sighted,  had  never  anticipated  the  plan  of  his  adversary, 
who  had  the  ingenuity  wholly  to  reverse  his  position  and 
still  hold  on  to  his  case  triumphantly.  • 

§  253.  As  we  close  this  subdivision  we  remind  the  stu- 
dent that  a  lawyer  who  is  expert  in  setting  verdicts  aside 
is  a  dangerous  .antagonist.  The  quality  implies  so  much 
of  readiness  and  foresight  that  its  possessor  usually  wins  a 
larger  proportion  of  cases  upon  the  first  trial  than  the 
average  of  his  brethren. 

§  254.  The  laAv^er  is  often  puzzled  to  decide  whether 
his  attack  or  defence  shall  be  bold  or  not.  Sometimes  he 
is  on  the  unpopular  side,  and  violence  will  repel  instead  of 
attracting  sympathy.  Again  he  will  often  conduct  cases 
where  timidity  Avill  ruin  him.^     All  the  counsel  that  I  can 

1  Miles  W.  Lewis,  of  Greene  County,  Georgia,  who  died  in  1880,  was  a 
lawyer  whose  natural  gifts  for  his  profession  were  out  of  all  projiortion  to 
his  small  ambition.     I  was  often  with  him  or  on  the  other  side.     I  came  at 


176  CONDUCT  OUT  OF  COURT. 

give  him  in  these  matters  is,  that  he  should  be  guided 
by  the  circumstances  and  his  knowledge  of  human  nature. 
Generally  a  conduct  fortiter  in  re,  suaviter  in  modo,  is  the 
best  of  all. 

§  255.  A  difference  in  the  sjjirit  of  offence  and  defence 
must  be  considered.  There  is  a  natural  advantage  of  the 
latter,  which  was  noted  long  ago  by  the  Romans.  Thus 
they  said :  "  If  the  one  holding  the  affirmative  does  not 
cast  the  onus  by  his  proof,  the  adversary,  though  he  show 
nothing,  will  prevail."  ^  "  The  necessity  of  proving  his  case 
is  always  upon  him  who  sues."  "^  And  they  said,  still  more 
acutely,  "  When  the  right  of  each  litigant  is  obscure  it  is 
customary  to  give  judgment  against  the  plaintiff."^  The 
most  apparent  advantage  of  the  offensive  is  that  its  course 
can  be  accurately  premeditated,  while  the  other  must  often 
be  in  peril  because  of  a  mistaken  anticipation  of  the  in- 
tended operations  of  the  assailant.  If  you  observe  a  large 
ri  umber  of  the  profession  you  will  find  that  you  may 
divide  them  into  two  classes,  placing  in  one  the  lawyers 
who  attack  better  than  they  defend,  and  in  the  other  those 
who  defend  better  than  they  attack.  Occasionally  you 
will  see  a  member  of  the  bar  who  will  nearly  always  be 
found  of  counsel  for  the  defendant,  while  -you  note  another 
who  is  so  prone  to  action  that  he  seems  to  get  all  the 
cases  which  demand  the  aggressive.  ISIr.  Parker  tells  us  : 
"Not  a  great   many  years  ago,  a  leading  lawj'er  at   the 

last  to  discover  liis  peculiar  forte,  which,  as  1  expressed  it,  was  that  he 
knew  hotter  than  any  of  us  when  to  bully  and  when  to  beg. 

^  "  Actore  enini  non  probante,  qui  convenitur,  etsi  nihil  ipse  praestarit, 
obtineat."     Cod.  2.  1.  4. 

2  "  Semper  necessitas  probandi  incumbit  illi,  qui  agit."    Inst.  2.  20.  4. 

"  "Cum  obscura  sint  utriusque  jura,  contra  petitorem  judicari  solet.'' 
Tnst.  4.  15.  4. 


PLAN  OF  CONDUCT.  177 

Siiftolk  Bar  retired  from  the  active  practice  of  the  court- 
room, and  among  other  reasons  for  that  retirement  he  gave 
this  :  '  What 's  the  use  of  going  on  term  after  term  fighting 
cases  for  corporations  with  Choate  to  close  on  me  for  the 
phiintiff  ?  If  I  have  fifty  cases,  I  shall  not  gain  one  of 
them.'  "  ^ 

§  256.  We  will  now  try  to  show  what  are  the  essentials 
of  a  good  defence.  In  many  cases  you  have  no  opportu- 
nity beyond  a  direct  reply.  Your  part  is  mere  resistance. 
You  only  meet  the  adversary  and  try  to  hold  your  case 
on  the  cardinal  points.  You  never  drop  the  defen- 
sive, relying  all  the  while  upon  the  general  issue  alone. 
Your  purpose  is  merely  to  draw  the  game  ;  and  nmch 
ingenuity  may  be  shown  here.  I  regarded  it  as  high 
praise  which  I  once  heard  given  a  lawyer  who  nearly 
always  avoided  taking  an  initiative,  though  he  was  in 
large  practice.  A  rival  who  was  often  opposed  said  of 
him,  "  He  usually  acquiesces  in  your  positions  and  beats 
you  by  adopting  your  theory  of  the  case."  The  common 
judge  or  juror  is  two-sided.  Ordinarily  he  is  inclined 
to  let  matters  remain  in  statu  quo  and  save  himself  the 
exertion  of  setting  them  to  rights.  This  vis  inertiae,  as  it 
were,  can  be  turned  to  great  account  in  the  management 
of  litigation  by  an  ingenious  practitioner  who  is  so  full  of 
it  that  he  always  has  a  plausible  reason  against  any  pro- 
posed change.  The  other  side  shows  itself  when  you  hear 
even  a  stranger,  perhaps  as  y  )u  walk  the  street  intent  on 
your  business,  make  complaint  against  another.  It  may 
be  that  money  has  not  been  paid  as  promised ;  it  may  be 
a  woman  asserting  to  a  man  that  he  has  abused  her  trust. 
You  pass  on  believing  that  the  charge  is  true,  although 

*  Reminiscences,  53. 
12 


178        CONDUCT  OUT  OF  COURT. 

you  licanl  it  denied.  Your  cxi)criencc  lias  strengthened 
the  inherited  tendency,  for  you  liavc  noted  that  far  more 
tlian  lialf  of  the  bills  presented  in  society  and  of  the  claims 
sued  in  the  courts  are  just  and  ought  to  be  paid.  It  is 
this  last-noticed  side  of  human  nature  which  generally 
gives  the  superior  morale  to  the  attack  in  litigation ;  and 
there  are  advocates  in  which  it  is  always  uj)permost  in 
such  contagious  potency  as  to  bring  their  hearers  in  ac- 
cord. As  Shakespeare  surmounted  the  heights  both  of 
tragedy  and  comedy,  the  ideal  practitioner  would  be  per- 
fect in  offence  or  defence  as  the  circumstances  dictated. 
And  we  see  that  the  average  practitioner  has  a  high  de- 
gree of  skill  in  both,  though  he  is  better  in  one  than  in 
the  other. 

§  257.  But  there  is  a  defence  which  in  its  nature  is 
offensive.  As  Ulpian  said,  "  He  brings  an  action  who 
stands  upon  a  plea  [other  than  the  general  issue],  for  when 
the  defendant  uses  such  a  plea  he  becomies  really  a  plain- 
tiff." ^  But  the  resort  to  the  offensive  is  not  alone  by 
means  of  an  affirmative  plea.  While  relying  on  tlie  gen- 
eral issue,  if  you  marshal  the  proofs  to  overwhelm  the 
main  witness  of  the  plaintiff,  you  are  acting  on  the  offen- 
sive as  decidedly  as  the  plaintiff  was  when  he  opened. 
Your  purely  negative  plea  is  supported  by  an  aggressive, 
realizing  it  may  be  Napoleon's  saying,  that  a  strong  attack 
is  the  best  defence.  We  have  mentioned  the  natural  in- 
clination of  men  to  fiivor  the  aggressive ;  and  also  that  it 
can  be  thoroughly  planned  beforehand.  This  last  is  the 
reason  why  the  advantage  is  usually  with  the  attacking 

^  "Agere  etiam  is  viJetur,  qui  exceptione  utitur,  nam  reus  in  excep- 
tione  actor  est."  Dig.  44.  ].  1.  The  bracketed  words  in  the  translation  are 
necessary  in  order  to  fit  Ulpian's  language  to  the  pleading  of  our  day. 


PLAN  OF   CONDUCT.  179 

column  in  warfare.  It  has  something  definite  and  premed- 
itated to  do.  Tlie  other  side  only  seconds  the  initiative  of 
the  attack,  and  will  scarcely  ever  anticipate  it  exactly  and 
precisely.  In  games,  in  campaigns,  and  in  litigation,  to 
have  the  move  is  worth  something.  If  chances  are  equal 
and  you  give  it  to  the  adversary,  he  will  beat  or  draw  if 
he  makes  no  misplay.  You  should  turn  your  defence  into 
a  real  attack,  if  you  have  good  ground  of  a  cross-action  at 
law  or  in  equity.  The  plaintiff  controls  his  action.  lie 
can  dismiss  and  renew,  or  shift  to  some  other  remedy  or 
forum,  and  avoid  trials  until  his  opportunity  is  ripe,  but 
the  defendant  who  is  nothing  but  a  defendant  only  parries 
his  adversary  pushing  for  a  trial  by  showing  some  provi- 
dential cause.  Even  when  your  legal  position  is  mere 
denial,  carry  some  cardinal  point  of  the  plaintiff's  case  by 
aggressive  disproof,  if  possible.  I  have  seen  more  bat- 
teries effectively  masked  and  more  surprises  successfully 
laid  under  the  general  issue  than  in  any  other  place. 

§  258.  So  then  we  advise  that  you  never  overlook  the 
advantage  of  the  aggressive.  It  may  be  legal,  as  when 
you  are  really  plaintiff,  or  it  may  be  cNddential,  as  when 
you  assail  the  proofs  of  the  other  side.  The  plaintiff 
should  hold  to  the  initiative,  and  keep  the  move  through 
the  entire  conduct  if  he  can.  And  the  defendant  should 
make  an  aggressive  defence  whenever  the  case  pernn'ts  it. 
The  moment  his  aggression  begins  he  has  the  move,  and 
if  it  has  been  planned  judiciously  and  executed  skilfully 
he  may  win  the  victory.  An  unaggressive  defence  requires 
more  vigilance  and  far  more  sudden  promptness  of  decision 
and  action  than  an  attack.^     It  is  only  to  be  adopted  when 

1  III  the  Eiiithiilamium  of  Catullus,  —  an  amabrean  poum,  —  the  maid- 
ens sing  first  and  the  3'ouths  merely  reply.     The  advantages  to  the  former 


180  CONDUCT  OUT  OF   COURT. 

there  can  be  no  other.  Still,  as  it  must  be  made  now  and 
then,  it  should  be  carefully  meditated  by  every  lawyer. 
Fancy  yourself  assailed  by  a  boxer  and  you  do  nothing  but 
parry  his  blows.  This  is  the  unaggressive  defence.  If  you 
catch  him  off  his  guard  and  knock  him  down,  this  is  aggres- 
sive defence,  and  much  safer  for  you  than  the  other. 

§  259.  That  the  opening  attack  of  the  moving  party 
must  be  premeditated ;  that  he  must  anticipate  the  mode 
of  resistance  that  will  be  made,  and  provide  the  means  of 
maintaining  his  lodgment  first  won  and  of  carrying  his 
advance  victoriously  on ;  and  that  the  other  side  must 
either  stand  upon  the  general  issue,  both  as  plea  and  on 
the  evidence,  or  make  an  active  and  offensive  move- 
ment;—  this  justifies  the  notice  we  have  made  of  this 
branch  of  the  subject.     These  operations  must   be  care- 

of  having  the  initiative,  and  the  hard  straits  of  the  latter,  who  must  an- 
swer instantly  to  the  premeditated  words  of  the  maidens,  are  well  expressed 
by  the  youths  iu  the  following  stanza :  — 

"  Non  facilis  nobis,  aequales,  palma  parata  est, 

Adspieite,  innuptae  secura  ut  meditata  requirnnt. 

Non  frustra  meditantur,  habeut  memorabile  quod  sit. 

Nee  mirum,  penitns  quae  tota  mente  laborant. 

Nos  alio  raentes,  alio  divisimus  aures: 

lure  igitur  vinceraur ;  amat  victoria  curam. 

Quare  nunc  aniraos  saltern  convertite  vestros, 

Dieere  iani  incipient,  iani  respondere  decebit." 

This  passage  is  translated  as  follows  by  Trof  Eobinson  Ellis,  of  Univer- 
sity College,  London  :  — 

"  No  light  victory  this,  0  comrades,  ready  before  us. 
Busy  the  virgins  muse,  their  practised  ditty  recalling, 
Muse  nor  shall  miscarry  ;  a  song  for  memory  waits  us. 
Rightly  ;  for  all  their  souls  do  inwards  labor  in  issue. 
We  —  our  thoughts  one  way,  our  ears  have  drifted  another, 
So  eomes  worthy  defeat  ;   no  victory  calls  to  the  careless. 
Come  then,  in  even  race  let  thought  their  melody  rival  ; 
They  must  open  anon  ;  't  were  better  anon  be  rephnng." 


PLAN   OF  CONDUCT.  181 

fully  prepared,  and,  what  is  of  more  importance  to  us  here, 
they  must  be  wisely  planned. 

§  2G0.  We  have  noted  above  tliat  it  is  better  sometimes 
to  put  forth,  in  some  sort  of  a  public  proceeding  in  the 
case,  the  line  of  defence.  The  neglect  or  improper  use  of 
such  an  opportunity  has  often  caused  irreparable  damage. 
It  is  proper,  therefore,  to  consider  the  topic  again  as  a  part 
of  the  subject  of  this  chapter. 

§  261.  The  lawyer  residing  in  a  retired  corner  of  the 
country  is  often  surprised  to  find  that  the  leading  facts  of 
an  exciting  case  circulate  widely  from  mouth  to  mouth. 
Though  they  are  mixed  with  much  fiction  and  exaggera- 
tion, yet  they  nearly  always  retain  enough  of  veracity  to 
uphold  in  some  measure,  when  they  are  investigated  on 
the  trial,  the  opinion  which  they  have  previously  produced. 
And  in  those  communities  situated  on  or  near  railway  lines 
Avhich  now  constitute  the  bulk  of  our  population  the  news- 
papers are  eagerly  read,  and  every  incident  of  such  a  case 
is  discussed  by  the  people  as  soon  as  it  comes  to  light.  If 
there  has  been  but  a  partial  disclosure,  and  that  of  unfavor- 
able evidence,  such  a  decided  prejudice  against  the  defend- 
ant may  be  formed  that  it  cannot  be  overcome.  A  prejudice 
of  this  kind  is  not  to  be  prevented  by  canvassing  and  talk 
except  when  the  party's  relatives  and  friends  are  numerous 
and  influential.  The  better  way  is  to  give  a  satisftictory 
explanation  of  the  unfovorable  fiicts,  supporting  it  if  need 
be  with  good  evidence,  either  at  the  examination  by  the 
magistrates,  or  upon  an  application  for  bail,  or  on  some 
other  occasion  in  court  which  permits.  Of  course  you 
must  have  a  real  mastery  of  all  the  essentials,  and  a  the- 
ory so  true  or  plausible  that  it  Avill  become  stronger  by 
examination. 


182        CONDUCT  OUT  OF  COURT. 

§  262.  Now  and  then  it  is  desirable  to  suppress  investi- 
gation and  discussion  if  possible.  I  renicniber  the  case  of 
three  persons  cliurgcd  with  having  niurdered  a  man  whose 
dead  body  had  been  found  at  an  early  morning  hour  in  a 
l)ublic  part  of  a  toAvn.  They  had  borne  good  characters. 
For  several  weeks  after  the  kilHng  there  had  been  no  sus- 
picion of  them.  The  case,  to  use  a  popular  phrase,  had 
been  "  worked  up  "  by  a  detective.  The  evidence  was  cir- 
cumstantial, consisting  of  very  many  minute  links,  only  a 
few  of  which  were  in  the  knowledge  of  any  particular 
witness,  and  all  of  no  seeming  importance  until  they  were 
collected  and  arranged.  When  the  arrest  was  made  there 
was  an  outbreak  of  deep  indignation  against  the  detective. 
The  defendants  did  not  waive  an  examination  and  offer 
bail,  as  they  could  have  done  under  the  statute.  And  so 
the  counsel  for  the  prosecution  put  together  all  of  the 
disordered  bits  of  evidence,  and  the  whole  was  carefully 
taken  down  by  the  magistrate.  Public  sentiment  was 
revolutionized  immediately,  and  the  defendants  were  com- 
mitted. Had  the  examination  been  waived,  the  prisoners 
could  have  easily  given  bail.  And  the  evidence  would  not 
have  been  recorded.  Had  they  not  been  in  jail,  it  would 
have  been  at  least  a  year,  considering  the  state  of  the 
docket,  before  they  would  have  been  brought  to  trial ;  and 
it  might  have  been  longer,  there  being  no  clamor  against 
them.  In  that  space  of  time  many  of  the  facts  would 
have  been  forgotten,  some  of  the  witnesses  might  have 
died,  others  have  removed  beyond  the  jurisdiction,  and 
still  others  —  not  committed  irrevocably  —  might  have  had 
their  mouths  stopped  by  pity  or  influence,  and  an  acquittal 
of  all  would  have  probably  been  the  end  of  the  matter. 
As  it  was,  only  one  was  saved  ;  and  some  of  the  better 


PLAN   OF   CONDUCT.  183 

part  of  the  community  always  believed  that  every  one  of 
the  three  was  innocent. 

§  26.3.  It  may  be  said  that  where  your  case  is  hard  to 
defend  and  your  client  enlists  much  influence  in  his  behalf 
it  is  almost  always  the  right  policy  to  defer  as  long  as  you 
can  giving  tlie  adverse  witnesses  an  opportunity  to  testify. 
In  a  few  months  or  even  weeks  their  heat  subsides,  they 
come  in  contact  with  those  in  sympathy  with  the  defend- 
ant, and  at  last  when  the  State  puts  them  upon  tlie 
stand  tliey  have  somehow  really  become  witnesses  for  the 
defence. 

§  264.  We  must  say  something  as  to  continuances. 
The  grounds  are  prescribed  by  tlie  law.  If  a  material  wit- 
ness is  ill,  or  some  otlier  cause  exists,  the  court  has  no  dis- 
cretion and  there  must  be  a  postponement  or  continuance. 
But  many  times  you  would  put  off"  the  trial  even  when 
you  have  apparently  collected  all  of  the  evidence.  Thus, 
just  after  a  homicide  has  been  committed,  the  excitement 
against  the  defendant  is  often  so  strong  that  he  will  surely 
be  convicted  if  brought  to  trial  before  it  subsides.  And  in 
other  cases  you  have  a  presentiment,  which  is  by  no  means 
the  tempting  whisper  of  procrastination,  that  you  will  be- 
come stronger  by  waiting.  This  occurs  especially  when 
you  are  defending  pcTsons  charged  with  crime  upon  cir- 
cumstantial proof,  of  which  I  will  give  a  striking  instance 
from  my  own  experience. 

§  265.  A  shopkeeper  had  employed  B,  an  ingenious 
workman  who  lived  near  to  make  him  a  new  cash  drawer. 
Its  mechanism  was  such  that  scrcAvs  securing  the  front 
piece  could  only  be  removed  ly  a  particular  sort  of  tool. 
About  a  month  after  the  draM'cr  had  been  made,  the  shop 
keeper,  who  slept  in  an  adjoining  room,  v/hcu  he  awoke  in 


184        CONDUCT  gUT  OF  COURT. 

the  morning  missed  his  pantaloons.  The  outside  door  and 
the  door  communicating  with  the  store-room  were  both 
open,  althougii  he  had  fastened  tliem  just  before  he  lay 
down.  The  drawer  was  gone.  After  a  short  search  he 
found  it  not  far  from  the  store,  but  of  course  without  the 
money  which  he  had  counted  the  night  before,  lie  left 
the  drawer  and  went  back  into  the  store.  A  few  minutes 
afterwards  he  saw  B  looking  at  the  drawer.  Then  B,  who 
was  almost  drunk,  sauntered  into  the  store.  He  was 
wearing  a  sack  coat,  and  in  one  of  the  pockets  the  shop- 
keeper saw  the  peculiar  sort  of  driver  necessary  to  unscrew 
the  drawer.  He  stealthily  took  it  out,  and  holding  it  up 
before  B  said:  "You  stole  my  money  last  night,  and 
now  here  you  are  trying  to  face  me  out  with  a  show  of 
fearless  innocence.  If  it  were  not  for  your  good  wife  and 
her  relatives  1  would  get  a  warrant  against  you  at  once. 
Leave,  and  never  come  about  me  again."  B  did  not  re- 
ply, and  slunk  away  with  a  guilty  look.  The  bystanders 
believed  that  B  was  guilty,  and  as  his  character  was  not 
first  rate  the  comnmnity  accepted  their  opinion.  But  an 
old  man  counselled  the  people  not  to  condemn  too  soon, 
saying  that,  while  B  might  possibly  pilfer  something  to  eat 
when  he  was  hungry,  yet  he  did  not  have  the  courage  to 
break  the  outside  door,  pass  through  the  room  of  the 
storekeeper,  who,  as  he  knew,  always  had  fire-arms  to  hand 
at  night  and  was  a  brave  man,  and  then  go  to  work  at 
opening  the  drawer  without  having  locked  the  door  be- 
tween him  and  the  storekeeper  as  he  could  have  done. 
But  the  old  man  was  unheeded,  and  it  was  resolved  that 
the  grand  jury  should  pass  upon  the  matter  at  the  next 
term  of  the  court. 

A  very  bold  burglar,  always  operating  alone  as  it  ap- 


PLAN   OF   CONDUCT.  185 

pearcd,  had  broken  into  several  houses  in  the  neighbor- 
hood and  carried  off  valuables  from  each  one.  He  had 
been  pursued  several  times,  but  without  effect.  His  horse 
had  been  seen,  and  could  be  identified  from  its  unusual 
appearance,  but  no  one  had  ever  seen  the  face  of  the 
rider.  A  few  months  after  the  cash-drawer  had  been 
rifled,  a  man  mounted  on  the  noted  horse  was  seen  going 
towards  the  town  w^hcre  the  shopkeeper  lived,  where 
he  would  probably  arrive  just  after  dark.  He  did  come 
at  the  time  expected,  and  unawares  he  rode  into  the 
midst  of  a  party  waiting  to  apprehend  him.  He  resisted, 
and  he  was  shot  from  his  horse.  The  horse  was  taken, 
and  when  a  light  was  struck  the  rider  was  tracked  by  his 
blood  from  the  place  where  he  had  fallen  to  a  fence  beside 
the  road.  The  fence  was  bloody.  He  could  be  traced  no 
farther,  and  he  never  was  found.  But  the  pantaloons  of 
the  shopkeeper  were  seen  on  the  other  side  of  the  fence, 
and  they  were  stained  with  fresh  blood.  And  in  a  haver- 
sack tied  to  the  saddle  of  the  captured  horse  were  some  of 
the  contents  of  the  drawer,  and  also  certain  articles  taken 
from  the  houses  when  they  were  entered  as  just  men- 
tioned. Thus  the  truth  came  out  at  last.  It  was  plain 
that  the  old  man  was  right,  and  that  the  entry  of  the  store 
was  the  exploit  of  the  daring  burglar.  Had  there  been  an 
indictment  of  B,  his  counsel,  of  better  insight  than  the 
crowd  clamoring  for  an  immediate  prosecution,  would  have 
left  no  means  untried  by  w^hich  the  case  could  be  contin- 
ued and  time  given  for  developments. 

§  266.    Again,  after  even  the  maturest  study  of  the  case 
you  feel  that  you  have  not  mastered  it.^     And  there  are 

1  Even  gifted  judges  who  have  considered  the  arguments  of  able  counsel, 
now  and  then  need  much  time  to  find  the  true  answer.     The  following 


18G         CONDUCT  OUT  OF  COURT. 

otlicr  reasons  to  be  considered.  I  have  known  cold- 
blooded lawyers  to  take  the  elianccs  of"  the  deatli  of  ad- 
verse witnesses  whose  testimony  had  not  been  perpetuated. 
I  knew  a  shrewd  and  successful  advocate  who  would  try 
his  bad  cases  and  would  not  try  liis  good  ones  at  tlie 
October  term  in  a  county  where  the  people  always  took  a 
more  than  usual  interest  in  the  political  campaign,  then 
near  closing  with  a  State,  Congressional,  or  Presidential 
election.  It  behooves  the  lawyer  to  stand  ready,  if  he  can, 
with  a  good  cause  of  continuance.  He  is  not  to  prepare 
a  perjured  showing.  But  by  always  keeping  his  eyes  about 
him  he  will  generally  possess  the  enviable  election  of  try- 
ing or  not  trying.  "  It  is  said  when  Schomberg  was  told 
that  the  enemy  was  advancing  and  was  determined  to 
fight,  he  answered,  with  the  composure  of  a  tactician  con- 
fident in  his  skill,  '  That  will  be  just  as  we  may  choose.'  "  ^ 
§  267.  And  it  is  the  business  of  the  lawyer  preparing 
to  provide  against  the  projected  continuance  of  the  adver- 

striking  instance,  from  the  experience  of  Judge  Bleckley,  is  given  in  his  own 
words :  — 

"The  case  of  Carswell  v.  Schley,  56  Ga.  101,  involved  the  construc- 
tion of  a  marriage  settlement.  Tt  was  argued  at  July  term,  1875,  and  by 
imperative  requii-ement  of  the  Constitution  had  to  be  decided  either  at  that 
term  or  the  one  next  ensuing.  The  court  deliberated  until  the  very  last 
day  of  the  latter  term,  and  was  still  as  far  as  ever  from  a  satisfactory  con- 
struction of  the  instrument  in  controversy.  As  the  hour  of  adjournment 
approached,  the  pressure  of  the  case  became  iiitolera1)lc,  —  especially  to  that 
member  of  the  court  to  whom  it  had  been  assigned  for  si)ecial  study.  In 
an  agony  of  perplexity  and  indecision,  he  walked  the  floor,  meditated,  and 
suffered.  All  at  ouce,  as  if  by  a  sort  of  inspiration,  the  correct  construction 
occurred  to  him.  On  communicating  it  to  his  colleagues,  it  proved  as 
satisfactory  to  them  as  to  himself,  and  the  case  was  decided  accordingly. 
Neither  in  the  argument  nor  in  consultation  had  there  been  any  reference 
made  to  the  view  which  presented  itself  so  suddenl}^  and  which  finally 
controlled  the  case." 

1  Macaulaj',  History  of  England,  Chap.  VIII. 


PLAN  OF  CONDUCT.  187 

sary,  if  possible.  It  is  not  en'ough  that  you  can  accept  or 
decline  an  offer  of  trial,  but  you  should  be  able  to  force 
one  upon  your  adversary  when  you  desire.  You  may  suc- 
ceed if  you  discover  in  time  the  groiuid  on  which  he  relies 
for  a  continuance.  The  law  may  allow  counter  showings, 
or  admissiofts  of  the  expected  proof  of  absent  witnesses. 
Or  the  showing  when  scrutinized  may  be  demonstrated  to 
be  only  apparently  good.  Or  there  may  be  some  reply 
which  may  avoid  the  showing.  Thus,  on  a  bill  in  equity 
to  recover  a  tract  of  land  and  for  an  account  of  the  mesne 
profits,  the  complainant,  feeling  that  he  had  a  certain  case 
and  being  very  anxious  to  try,  met  a  strong  showing  of 
the  absence  of  witnesses  to  disprove  the  alleged  profits  of 
the  land  by  striking  out  the  part  of  his  bill  which  claimed 
them.  As  the  defendant  was  insolvent,  the  complainant 
made  no  sacrifice. 

§  268.  So  much  for  the  subject  of  continuances,  only 
we  must  say  that  no  la'w^er  should  cidtivate  a  slowness  to 
try  his  cases.  There  are  some  who  always  recoil,  and  their 
ingenuity  in  devising  continuances  is  exhaustless  for  a  long 
while.  The  accumulation  on  many  of  the  dockets,  the 
great  impatience  with  jury  duty,  and  the  insufficient  judi- 
cial force  everywhere,  make  it  nearly  always  uncertain 
when  even  a  case  where  both  parties  desire  it  can  be  tried. 
In  such  a  st<ate  of  things  the  lawyer  who  is  too  prone  to 
continue  may  after  a  wliilc  be  practically  out  of  business. 

§  269.  We  have  already  given  the  subject  of  remedies 
much  attention.  It  deserves  another  glance  from  this 
standpoint.  Sometimes  you  need  several  remedies.  Thus 
under  the  statute  it  was  very  doubtful  whether  it  was  the 
business  of  the  Ordinary  or  the  County  Commissioners  to 
grant  a  certain  license.     An  applicant  against  whom  there 


188        CONDUCT  OUT  OF  COURT. 

was  great  hostility  sliould  nave  applied  to  both,  and  then 
taken  separate  proeeedings  to  review  eaeh  judgment  refus- 
ing his  application.  For  the  time  allowed  was  so  short 
that,  when  it  was  decided  he  had  applied  to  the  wrong 
tribunal,  it  was  too  late  to  apply  to  the  other. 

And  there  are  cases  of  ambiguous  right  where  it  is 
proper  that  you  have  different  claimants  \it\gsxte  pari  passu. 

But  there  is  another  important  standpoint.  A  dexter- 
ous use  of  a  new  and  unexpected  remedy  often  proves  very 
embarrassing  to  the  adversary.  See  if  you  cannot  make  a 
decisive  swoop  upon  him  with  an  injunction,  receivership, 
removal,  or  levy.  I  have  known  a  railway  to  suiTcnder 
at  discretion  to  a  plaintiff  who  had  blocked  its  business 
by  garnishing  all  the  merchants  along  its  line  to  whom 
it  habitually  carried  much  freight. 

§  2/0.  Sometimes  you  have  a  group  of  connected  cases, 
where  one  should  be  managed  with  a  view  to  the  others. 
Thus  there  may  be  several  defendants  indicted  for  a  grave 
offence,  and  each  one  may  be  entitled  to  a  separate  trial. 
Or  there  may  be  suits  against  a  railway  by  different  passen- 
gers, all  of  whom  have  been  injured  by  the  same  casualty. 
And  the  connection  may  not  be  so  intimate  as  supposed  in 
the  last  two  sentences,  for  one  case  may  involve  but  a  part 
of  the  facts  of  the  other.  If  you  can  have  one  tried  first, 
you  may  discover  important  secrets  ;  or  you  may  wm  it 
more  easily  than  you  can  the  others,  and  discourage  your 
adversary  or  secure  the  good  opinion  of  the  public  ;  or  you 
may  profitably  defer  a  show  of  your  own  strength  until  it 
is  too  late  for  resistance  by  the  other  side.  If  your  desire 
be  no  more  than  to  sound  tlie  judge  and  reconnoitre  the 
adverse  positions  and  evidence,  it  is  better  to  begin  Avith  a 
case  in  which  vou  have  least  at  stake,  or  where  the  adver- 


PLAN  OF   CONDUCT.  189 

sarj  is  weak,  or  where  you  are  sure  of  being  invincible. 
When  it  is  your  aim  to  bring  public  opinion  to  your  side 
Avitli  the  verdict,  by  all  means  have  the  first  encounter 
where  your  advantage  is  very  great.  Thus,  in  the  instance 
just  mentioned  of  suits  by  passengers,  for  the  defendant 
you  would  prefer  to  commence  with  a  professional  man, 
who  puts  an  extravagant  estimate  upon  his  diminished 
capacity,  rather  than  with  a  poor  woman  claiming  compen- 
sation only  for  serious  hurt  to  her  person  and  great  pain 
and  suffering. 

§  2/1.  As  an  example  of  attaining  the  third  object  in 
the  enumeration  just  made,  we  give  the  following.  A 
young  man  was  indicted  for  murder.  His  defence  was  a 
very  strong  one,  but  by  reason  of  the  popularity  of  the 
deceased  a  great  excitement  was  raging  against  him  in 
the  public  mind.  While  this  was  at  its  highest,  a  suit  for 
divorce  was  commenced  by  that  one  of  his  counsel  who 
had  borne  the  principal  burden  of  preparing  his  case,  on 
the  allegation  of  adultery  of  the  wife  committed  with  the 
client.  The  evidence  supporting  the  suit  being  very 
weighty,  and  much  of  it  having  got  in  circulation,  the 
excitement  mounted  into  a  fury  which  threatened  to  end 
in  lynching.  By  skilful  fence  the  criminal  case  was  post- 
poned for  more  than  two  years.  In  the  mean  while  the 
libel  had  become  ripe  for  trial.  One  of  the  counsel  for  the 
defendant  in  the  indictment  led  for  the  libellant,  and  this 
connection  gave  him  opportunity  to  try  the  criminal  case 
before  the  divorce,  when  the  odium  of  the  killing  had 
been  almost  supplanted  by  that  of  the  other  charge.  The 
defendant  was  acquitted  ;  and  in  due  time  the  libellant 
succeeded.  Had  the  order  been  reversed,  the  exposure 
made  by  the  plaintiff's  e\ddence  would  have  in  all  proba- 


190        CONDUCT  OUT  OF  COURT. 

bility  hung  a  millstone  of  inveterate  prejudice  around  the 
neck  of  the  young  man. 

§  272.  In  Georgia,  joint  defendants  in  a  criminal  case 
may  be  tried  separately  upon  the  motion  of  cither  the 
State  or  the  defence.  When  there  is  a  severance,  the 
State  can  elect  which  one  is  to  be  first  put  on  ti-ial.  This 
election  is  a  great  advantage  to  the  State ;  and  it  can  be 
avoided  only  by  a  good  showing  for  a  continuance  by  the 
particular  defendant  so  elected.  On  the  trial  of  one  of 
the  defendants,  the  others  can  testify.  If  they  testify  for 
the  prisoner,  that  is  an  advantage  to  him  of  severing. 
Oftentimes,  to  avoid  more  than  one  trial  and  to  give  the 
defendants  the  privilege  of  testimony  just  mentioned,  it  is 
agreed  that  while  all  shall  be  tried  jointly  each  one  shall 
have  the  others  as  witnesses.  It  is  my  observation  that  this 
agreement  is  usually  advantageous  to  the  defendants  in 
two  respects.  If  one  or  two  of  them  are  of  good  character 
or  have  a  very  strong  case,  there  \v\\\  frequently  be  an  ac- 
quittal of  all  ;  and  if  the  defendants  are  numerous,  the  jury 
will  compromise  by  acquitting  some  and  convicting  others, 
even  where  the  evidence  against  all  is  strong. 

§  273.  There  was  the  same  issue  in  two  civil  cases. 
The  defendant  got  a  verdict  at  the  trial  of  the  first.  A 
long  and  somewhat  confused  document  had  been  put  in  evi- 
dence by  the  plaintiff,  which  the  adversary  had  not  time  to 
consider  closely,  the  exigency  demanding  it  having  occurred 
suddenly  by  reason  of  an  unexpected  turn  in  the  trial.  The 
plaintiff  moved  for  a  new  trial  upon  various  grounds.  His 
most  satisfactory  one  was  that  the  verdict  was  against  this 
document,  and  his  motion  was  granted  oil  this  ground. 
Had  he  postponed  the  hearing  of  the  motion  until  after  the 
trial  of  the  other  case,  he  would  in  all  probability  have  won 


PLAN   OF   CONDUCT.  191 

the  latter  ;  for  tlic  defendant  was  very  confident  that  the 
document  was  favorable  until  the  adversary's  argument  of 
the  general  proposition  that  the  verdict  was  contrary  to 
the  evidence  changed  his  mind.  He  then  set  to  work  and 
looked  up  other  proof,  by  means  of  which  he  finally  pre- 
vailed in  both  cases. 

§  274.  For  all  cases  closely  related  to  one  another,  as 
cxi)laincd  above,  there  should  be  careful  forecast  in  the 
plan  of  conduct.  It  will  nearly  always  help  you  to  have 
the  selection  of  the  one  to  be  tried  first.  And  the  use  of 
the  trial  to  make  discoveries  of  fact  and  the  views  of  the 
adversary,  to  divert  attention  from  defenceless  points,  to 
sound  the  judge,  to  steal  a  march  and  achieve  the  first 
success,  should  be  well  premeditated.  Means  of  post- 
poning the  other  cases  may  be  found.  The  counsel  en- 
gaged should  be  carefully  studied.  The  one  leading  on 
the  opposite  side  of  the  preferred  case  may  not  be  in  the 
others,  and  he  may  press  for  immediate  trial  and  have  such 
force  of  character  as  to  effect  an  acquiescence  in  his  desires. 
Or  your  wish,  if  its  real  reason  be  cleverly  concealed,  may 
be  attained  by  the  consent  of  your  adversaries. 

The  subject  is  too  much  neglected  by  all  but  the  most 
thorough  practitioners.  Many  times  the  average  lawyer  is 
not  aware  of  the  bearing  which  one  of  his  cases  has  upon 
another  until  he  has  blundered  into  a  premature  show  of 
his  hand  or  made  his  attack  in  the  Avrong  place,  after 
which  he  sees  that,  had  he  tried  the  other  first,  he  would 
have  gained  both  or  lost  but  one.  It  is  not  enough  that 
each  case  be  well  understood.  The  need  is  that  every 
member  of  the  group  be  studied  in  its  relations  to  its  com- 
panions of  witnesses  and  other  evidence,  of  legal  positions, 
of  peculiar  strength  or  weakness,  as  for  instance  in  respect 


192        CONDUCT  OUT  OF  COURT. 

of  the  character  of  the  parties,  of  counsel,  and  of  many 
other  tilings  which  will  suggest  themselves  to  the  practi- 
tioner whose  eyes  have  been  opened  to  the  importance  of 
this  matter. 

§  275.  Closely  akin  to  the  last  subdivision  is  the  securing 
of  all  possible  alliances  for  your  client.  Other  people  may 
be  similarly  interested  while  they  are  not  parties.  Their 
co-operation  will  often  help  greatly,  revealing  new  facts, 
adding  influence,  and  softening  opposition.  Sometimes 
their  interest  had  better  be  kept  secret  until  you  have  won 
a  decided  success,  and  again  it  may  be  well  to  proclaim  it 
early.  It  now  and  then  occurs,  that  after  litigation  passes 
a  certain  point  there  is  a  divergence  of  the  interest  which 
was  united  before.  Here  by  a  communication  to  your  old 
enemies,  demonstrating  their  present  community  of  inter- 
est with  you,  you  may  propose  such  wise  conjoint  action 
as  will  turn  them  into  the  best  troops  of  your  side. 

Reflect  and  look  about,  and  you  will  soon  find  in  your 
own  practice  many  illustrations  of  what  we  have  said  in 
this  section. 

§  2/6.  One  of  the  last  things  in  the  plan  to  be  matured 
is  the  settlement  of  what  we  may  term  the  order  of  trial ; 
that  is,  the  arrangement  of  your  law  points  and  the  mar- 
shalling of  your  proofs.  The  former  may  be  dismissed 
with  this  mere  allusion.  The  other  demands  a  short  com- 
ment. We  will  begin  by  illustration  from  a  blunder.  A 
prisoner  was  put  on  trial  for  murder.  The  killing  had  oc- 
curred in  the  midst  of  a  large  collection  of  people,  nearly 
all  of  whom  were  hostile  to  the  slayer ;  but  as  it  was  sud- 
den and  attended  with  great  excitement  there  was  but  one 
of  the  bystanders  not  related  to  him  who  could  prove  that 
he  gave  the  fatal  stroke.     The  defence  was  that  he  was 


PLAN  OF  CONDUCT.  193 

protecting  the  life  of  his  infirm  father.  If  the  defendant 
introduced  no  evidence,  he  would  have  the  last  word  to 
the  jury.  The  counsel  for  the  State,  who  unduly  desired 
this  privilege  for  himself,  ordered  his  proofs  with  a  view  to 
force  the  defendant  to  introduce  evidence.  He  proved  the 
killing  only,  and,  relying  upon  the  presumption  of  malice 
therefrom,  he  rested.  The  father  then  testified  that,  while 
he  was  unarmed,  the  deceased  renewed  a  former  quarrel 
with  him,  tried  many  ways  in  vaiu  to  provoke  a  blow,  and 
at  last  commenced  an  assault.  The  witness  struck  back 
in  self-defence.  The  deceased  began  to  use  his  knife. 
Some  of  the  friends  of  the  latter  struck  the  old  man  from 
the  other  side.  One  of  his  sons  came  up,  but  he  was  pros- 
trated by  a  cudgel.  While  the  father  guarded  against  the 
gleaming  blade  in  front  and  was  under  a  rain  of  blows 
from  behind,  the  other  son,  the  defendant,  rushed  into  the 
fray,  killing  the  deceased  after  a  brief  encounter  and  then 
instantly  turning  his  bloody  knife  upon  the  other  comba- 
tant, who  was  still  beating  his  father.  It  thus  appeared 
that  the  son's  sole  object  was  the  deliverance  of  the  father 
from  his  extreme  peril.  The  old  man  passed  a  long  cross- 
examination  without  damage,  and  the  effect  of  his  testi- 
mony, in  spite  of  his  relationship  and  unpopularity,  w^as 
very  great,  as  it  seemed  to  raise  the  curtain  which  the 
State  w'anted  to  keep  down  and  explain  the  motive  of  the 
act.  The  State  replied  with  voluminous  and  apparently 
credible  evidence  contradicting  that  of  the  father,  but  she 
could  not  displace  its  deep  lodgment. 

§  277.  Had  the  counsel  for  the  State  introduced  at  the 
first  much  of  that  w^hich  he  had  reserved  for  rebuttal,  he 
could  have  given  to  his  theory  of  the  killing  the  telling 
support  of  the  first  impression  upon  the  minds  of  the  jury. 

13 


104         CONDUCT  OUT  OF  COURT. 

But  lie  well  knew  tlie  defence  relied  ui)()n,  as  the  father 
had  made  a  statement  under  the  statute  when  he  was  pre- 
viously tried  on  the  same  indictment  and  acquitted,  and 
he  knew  further  that  nearly  any  particular  one  of  tiie  by- 
standers would  testify  to  at  least  a  minute  fact  in  some 
wise  verifying  the  narrative  of  the  father.  This  made 
him  fear  that,  if  he  undertook  to  go  beyond  the  mere 
killing,  the  prisoner  would  draw  out  in  cross-examination 
sufficient  to  justify  him  in  dispensing  with  evidence  for 
himself. 

§  2/8.  We  may  say  that,  if  your  case  for  the  plaintiff 
is  doubtful,  you  should  premeditate  resting  only  upon  as 
strong  proof  as  you  can  make.  And  this  is  almost  univer- 
sally the  right  policy  in  criminal  prosecutions.  But  where 
nmch  of  your  evidence  for  the  plaintiff  is  self-contradictory 
or  open  to  other  serious  attack,  it  may  be  expedient  to  as- 
certain the  evidence  on  which  the  defendant  will  rely  in 
time  for  you  to  cull  from  your  own  that  which  serves  to 
overbear  your  antagonist  without  hurting  you.  Some  effi- 
cient lawjers,  who  are  generally  as  strong  on  one  side  as 
on  the  other  of  any  particular  kind  of  case,  seem  to  do  all 
of  their  premeditation  after  they  have  announced  ready. 
They  show  a  wonderful  quickness  and  ingenuity  which  are 
often  overprized.  If  you  note  them  closely,  you  find  that 
they  frequently  lose  for  the  lack  of  something  which  a 
little  forethought  would  have  supplied,  and  further  that 
they  hardly  ever  thoroughly  try  a  case  until  by  chance  they 
have  opportunity  to  try  it  the  second  time.  The  young 
lawyer  should  teach  himself  to  arrange  beforehand  all  of 
his  positions  as  to  decisive  points  of  law  and  evidence. 
He  must  not  try  to  predict  the  minutia3  of  the  adverse 
case  nor  all  of  even  his  own.     While  he  prepares  for  that 


PLAN   OF   CONDUCT.  195 

whicli  can  be  almost  unerringly  predicted,  lie  must  also 
cultivate  the  ex  tempore  readiness  a  high  degree  of  which 
is  always  found  as  a  characteristic  of  the  successful  trial 
counsel.  A  definite  direction  and  a  general  outline  arc  all 
that  should  be  included  in  the  plan.  If  this  is  done  with 
prudence  and  practical  insight,  and  if  experience  has  devel- 
oped self-reliance  and  inventiveness,  the  lesser  operations 
will  in  the  main  be  conducted  aright. 

§  279.  The  plaintiff,  or  the  party  maintaining  the  af- 
firmative of  the  issue,  usually  has  the  right  to  begin.  The 
defendant  may  sometimes  acquire  it  by  confession  and  jus- 
tification. Again,  where  one  has  the  initiative,  he  may  be 
deprived  of  ha^^ng  the  last  word  to  the  jury  by  the  failure 
of  the  other  side  to  introduce  evidence.  We  note  that 
many  lawyers  take  pains  to  secure  both  the  right  to  begin 
and  the  general  reply.  I  think  that  usually  in  practice  the 
value  of  the  first  impression  upon  the  court  with  evidence 
prima  facie  satisfactory  is  underrated,  while  the  value  of 
the  conclusion  in  the  argument  is  overrated.  Both  advan- 
tages arc  to  be  sought  after.  But  either  one  can  be  bought 
too  dear.  A  defendant  at  law  may  turn  himself  into  a 
plaintiff  in  equity  by  a  bill  giving  his  adversary  advantages 
that  he  did  not  have  before,  and  it  is  a  common  observa- 
tion that  the  concluding  argument  to  the  jury  is  often 
obtained  by  a  fatal  sacrifice  of  evidence. 

§  280.  We  insist  that  the  plan  be  clearly  grasped  and 
fixed  in  the  understanding.  Nothing  conduces  so  much  to 
this  end  —  especially  in  complicated  cases  —  as  that  it  be 
neatly  drafted.  That  may  largely  be  done  in  the  arrange- 
ment of  your  proposed  proofs. 

§  281.  In  conclusion  of  what  we  say  of  the  essentials, 
we  urge  that,  though  this  is  a  long  chapter,  its  length  is 


196        CONDUCT  OUT  OF  COURT. 

not  sufficient  even  in  this  small  work  to  represent  the  rela^ 
tive  importance  of  its  subject.  The  essence  of  our  lawyer 
is  in  how  he  fashions,  anticipates,  and  contrives  as  to  the 
points  on  wliich  the  event  will  turn ;  the  unerring  judg- 
ment of  his  adoption  or  rejection  of  materials  belonging  to 
every  one  of  the  three  elements,  or  of  means  that  are  pro- 
posed ;  the  consolidation  of  his  proofs  in  strongest  array ; 
his  happy  provision  against  the  as  yet  unpublished  counter 
preparation ;  the  exquisite  tact  by  which  lie  covers  the 
vulnerable  parts  of  his  evidence  and  commands  those  of 
the  opposite,  keeps  back  unfavorable  and  brings  out  fa- 
vorable law  questions,  and  steers  clear  of  the  shoals  of 
obloquy  into  which  he  draws  his  adversary ;  his  Napo- 
leonic audacity  in  rightly  aiming  his  attack  upon  seem- 
ingly impregnable  positions,  —  yes,  this  is  the  true  sphere 
and  arena  of  the  trial  practitioner.  A  right  plan  of  con- 
duct is  the  eye  to  preparation,  to  the  opening  of  the  case, 
superintendence  of  the  evidence,  argument,  and  gather- 
ing the  fruits  of  \ictory.  During  the  time  of  the  classical 
Roman  law  the  jurisconsult  —  that  is,  tlie  case-answerer  — 
was  highly  exalted  above  the  forensic  orator.  And  we 
have  reached  a  time  when  the  lawyer  who  is  very  able  in 
plan  of  conduct  far  excels  in  sway  of  business  and  stand- 
ing at  the  bar  the  mere  advocate,  however  much  honey  he 
may  let  flow  from  his  tongue. 

§  282.  We  will  now  treat  somewhat  at  random  of  some 
other  topics  which  we  are  in  doubt  whether  to  place  in 
this  chapter  or  in  those  immediately  preceding. 

§  283.  Sometimes  you  can  help  your  case  by  procuring 
special  legislation  for  it  in  matters  not  hampered  by  the 
Federal  or  State  Constitution.  Thus  the  legislature  may 
remit  a  forfeiture  to  the  State  before  the  right  of  some 


PLAN   OF   CONDUCT.  197 

person  to  it  has  vested  by  reason  of  a  judgment  rendered 
in  his  favor. 

§  284.  There  are  many  controversies  which  you  had 
better  dispose  of,  if  you  can,  by  an  arbitration  or  reference. 
It  is  generally  a  prudent  rule  to  arbitrate  bad  cases  and 
decline  to  arbitrate  good  ones.  Arbitrators,  both  profes- 
sional and  lay,  are  over-prone  to  compromise ;  and  if  the 
right  is  manifestly  against  you,  still  you  will  nearly  always 
be  awarded  something  in  an  arbitration.  But  it  has  been 
my  observation  that  the  poor,  the  weak,  the  infirm,  the 
widow,  and  the  orphan,  succeed  better  in  their  cases  when 
the  whole  country  can  note  the  trial  from  beginning  to  end. 
To  leave  the  case  of  an  inexperienced  man  of  submissive 
disposition  who  is  matched  with  a  shrewd  adversary  to  the 
decision  of  laymen,  is  generally  to  make  the  strong  man 
stronger  and  the  weak  one  weaker.  Yet  there  are  cases 
involving  the  most  delicate  matters  which  should  never  be 
publicly  investigated  if  it  can  be  avoided.  The  whole 
community  would  be  scandalized  at  the  consequent  expos- 
ures. When  the  honor,  the  happiness,  or  the  domestic 
peace  of  your  client  is  at  stake,  you  must  govern  him  with 
a  high  hand.  His  property  and  the  amount  of  your  fee 
should  be  postponed  to  the  more  precious  interests. 

§  285;  Here  is  our  opportunity  for  recommending  ami- 
cable settlements.  Let  it  be  your  always  kept  rule,  except 
in  those  cases  where  delay  is  perilous,  never  to  bring  an 
action  or  file  a  defence  until  you  have  been  refused  a  com- 
position that  you  regard  reasonable  and  right.  Ask  the 
other  side  to  confer  with  you ;  solicit  an  offer ;  be  ready 
to  offer  terms  yourself.  Always  get  from  your  client  as 
large  discretion  as  possible.  The  disease  of  our  judiciary 
is  slowness.    The  parties  grow  old  in  litigation  :  witnesses 


198         CONDUCT  OUT  OF  COURT. 

die ;  the  death  of  a  party  often  entails  inextricable  confu- 
sion ;  and  there  is  still  more  Avhere  a  counsel  who  is  the 
sole  repositary  of  the  secrets  of  a  long  pi'cparation  falls  in 
the  harness.  It  is  better  for  the  court  always  crowded 
with  business,  better  for  the  parties  who  have  other  affairs 
c-laimiiig  attention,  better  for  the  lawyers,  better  for  so- 
ciety, that  there  be  as  speedy  settlement  as  possible  of  all 
cases  that  can  be  settled.  Remember  the  almost  uncon- 
scionable sacrifices  which  a  shrewd  business  man  will 
often  make  in  order  to  avoid  the  courts.  I  lean  decidedly 
against  arbitration  in  general.  References  to  the  counsel 
of  the  parties  are  better,  but  there  is  in  them  also  too 
much  compromise  of  certain  rights.  An  informal  settle- 
ment with  your  adversary's  lawyer  is  jjreferable.  If  you 
can  meet  each  other  as  gentlemen,  and  not  as  sharpers,  in- 
tending to  effect  a  settlement  which  shall  be  on  the  whole 
just  and  fair,  you  will  often  be  astonished  to  find  how  you 
can  satisfy  yourselves  and  rejoice  your  clients.  The  cele- 
brated lawyer  whom  I  commended  above,^  habitually  made 
more  effort  to  settle  cases  than  any  of  his  contemporaries. 
If  you  Avere  on  the  other  side  and  believed  to  be  favorably 
inclined,  he  would  sound  you  as  soon  as  he  fell  in  with 
you  ;  and  if  he  found  the  way  clear,  he  would  disclose  his 
hand  with  great  frankness.  Then  he  would  consider  what 
you  had  to  say.  After  brief  reflection  he  ^vould  begin, 
"Well,  t'iis  is  the  right  of  the  case,"  and  he  would  proceed 
to  state  what  he  conceived  it  to  be.  He  always  conceded 
you  something  for  the  sake  of  peace,  as  he  would  say.  With 
this  frankness  and  earnest  desire  to  end  at  once  all  strife 
that  he  could,  he  amicably  disposed  of  an  amazing  amount 
of  litigation.     He  made  a  large  fortune  in  the  practice ; 

'  §78. 


PLAN   OF   CONDUCT.  199 

and  I  often  thought  that  the  greater  part  of  it  was  the 
accumuhition  of  fees  wliieh  he  had  reeeived  in  siieh  cases. 
Nothing  coukl  exceed  his  candor  botli  to  his  adversary  and 
to  his  own  ch'ent.  To  the  hitter  he  woukl  say,  when  can- 
vassing a  proposed  settlement :  "  Possibly  1  might  be  able 
to  recover  a  better  verdict  for  you ;  but  then  the  chances 
of  doing  worse  arc  so  and  so.  Your  time  and  your  peace 
are  worth  more  than  this  probablj  concession.  I  advise 
you  to  settle  as  is  proposed ;  but  I  tell  you  that  you  com- 
mand me  Avhile  I  can  only  reconmiend  to  you."  The  cli- 
ent generally  heard  this  little  harangue  with  weariness,  and 
before  it  was  half  done  had  given  him  full  powers.  He 
who  rejected  his  proposals  nearly  always  had  reason  after- 
wards to  repent,  for  it  was  but  seldom  in  such  a  case  that 
he  failed  to  recover  more  than  he  had  offered  to  be  content 
with. 

§  286.  The  lawyer  should  ever  be  vigilant  to  discover 
chances  of  compromising  controversies.  Let  him  guard 
himself  against  a  disposition  to  concede  too  much,  and  he 
should  not  make  of  himself  a  stickler  for  small  things.  Let 
him  confer  only  with  the  counsel  of  the  other  side.  Never 
take  advantage  of  a  layman.  Seek  a  foeman  Avorthy  of  your 
steel  in  his  lawyer.  To  procure  an  inadequate  settlement 
of  a  litigated  matter  from  a  party  without  the  knowledge 
of  his  lawy^er  ought  to  be  made  a  penal  offence.  When 
negotiating,  you  are  to  be  prudent  and  careful,  for  you 
must  not  disclose  secrets  to  your  hurt.  And  that  which 
is  of  the  greatest  importance  is  that  you  shall  understand 
the  character  of  your  adversary.  If  he  is  tricky  or  unrea- 
sonably contentious,  you  had  better  do  nothing  more  than 
make  him  a  definite  offer,  and  inquire  for  his  in  the  event 
that  he  rejects  yours.     But  if  he  is  one  of  those  gentlemen 


200        CONDUCT  OUT  OF  COURT. 

who  fill  the  bar  of  America  everywhere,  when  you  divme 
that  he  cannot  meet  or  evade  your  strength,  you  may 
disclose  it,  and  thereby  the  more  speedily  effect  your 
purpose.  It  has  been  my  experience  to  find  that  in  trea- 
ties with  counsel  for  amicable  settlements  there  are  less 
diplomacy  and  less  strife  to  outwit  than  in  any  other 
attempts  at  adjustment. 


BRIEFS.  201 


CHAPTER  VI. 

BRIEFS. 

§  287.  After  some  hesitation  we  have  decided  to  de- 
vote a  chapter  to  the  subject  of  Briefs.  Were  we  writing 
for  the  English  public  we  should  give  it  only  a  paragraph, 
inserted  in  some  fit  digression  above.  The  quotation  from 
Sellon  made  hereinafter  would  constitute  the  bulk  of  what 
we  should  have  said.  That  the  importance  of  a  brief  for 
the  proper  preparation  of  a  case  for  trial  at  nisi  priiis  is 
so  great,  and  is  so  little  understood  in  this  country,  is  the 
reason  justifying  this  chapter. 

§  288.  The  word  in  the  comprehensive  sense  which 
prevails  in  England  is  hardly  ever  used  in  America.  Here 
the  lawyer  generally  calls  the  skeleton  of  his  law  argument 
his  brief.  In  many  parts  of  the  country  you  never  see  him 
provided  with  any  notes  except  when  he  argues  a  purely 
legal  question,  and  even  then  you  will  seldom  see  him  fur- 
nished with  what  he  calls  a  brief,  unless  he  is  before  the 
court  of  last  resort.  You  are  inclined  to  believe  that,  did 
not  the  rules  require  him  to  furnish  the  court  with  his 
points  and  authorities,  he  would  there  trust  to  his  unaided 
memory  in  making  his  argument. 

§  289.  In  England  the  brief  is  prepared  by  the  attorney 
for  the  use  of  the  counsel  who  conduct  the  trial.  The 
author  just  mentioned  gives  the  following  ad\dce :  "  The 


202  CONDUCT   OUT   OF   fT)URT. 

briefs  sliould  contain  an  abstract  of  tlic  pleadings,  a  clear 
statement  of  the  clielit's  case,  and  a  proper  arrangement  of 
the  proofs,  with  the  names  of  the  witnesses.  The  grand 
rnle  to  be  observed  in  the  drawing  of  briefs  is  conciseness 
with  perspicuity."  ^  Another  author  of  high  authority, 
citing  and  approving  the  passage  ju  t  ([noted,  says:  "  Pre- 
viously to  the  trial  a  ftr/V;/*  should  be  pre})ared  by  the  attor- 
ney for  each  party  and  delivered  to  counsel,  containing  a 
copy  or  full  abstract  of  the  pleadings,  a  clear  statement 
of  the  facts  of  the  case,  with  such  observations  as  occur 
thereon,  and  a  proper  arrangement  of  the  proofs,  with  the 
names  of  the  witnesses.  The  great  rule  to  be  observed  in 
drawing  briefs,  as  is  well  expressed  in  a  late  useful  publi- 
cation, consists  in  conciseness  with  perspicuity."  ^ 

§  290.  The  reader  thus  sees  that  a  brief  prepared  by  an 
English  attorney  is  nmch  more  than  a  mere  enumeration 
of  points  and  authorities.  It  may  not  contain  a  single  one 
of  these  and  yet  be  voluminous.  It  is  such  a  statement 
as  that  the  case  may  be  therefrom  understood  and  con- 
ducted. To  define  it  by  its  essence,  it  sets  forth  in  an 
orderly  method  the  whole  results  of  the  preparation  of  the 
case. 

§  291.  Surely  it  is  not  needed  that  we  pause  here  and 
demonstrate  the  good  policy  of  making  a  brief  in  the 
English  sense  for  every  case.  The  merchant  enters  all 
his  transactions  as  they  occur  in  his  day-book,  and  at  last 
they  are  transferred  to  the  ledger,  Avhere  they  are  sorted 
and  digested.  The  lawyer  himself  keeps  his  books,  in 
which  he  can  always  find  a  lucid  record  of  any  affair 
between  himself  and  his  client  or  partner.  The  most 
ready  advocates  premeditate  what  they  will  say,  and  if 

1  2  Sellon  Pr.  459.  2  Tidd  Pr.  799. 


BRIEFS.  203 

they  do  not  hold  their  notes  before  them  while  they  are 
speaking  they  yet  liave  the  substance  of  their  speeches 
well  conned  and  by  heart.  Shall  the  lawyer,  who  is  a 
licensed  irregular,  who  has  no  appointed  times  of  his  own, 
who  is  in  his  office  at  his  hasty  preparation  to-day  and  a 
hundred  miles  away  attending  a  distant  court  to-morrow, 
—  shall  he  who,  as  fast  as  he  loads  his  memory  afresh,  has 
the  contents  at  once  thrust  out  by  others,  trust  to  that 
battered  and  ill-treated  memory  to  carry  the  pleadings,  the 
evidence,  the  anticipations  of  the  adversary's  case  and  the 
plan  of  conduct,  without  giving  it  artificial  aid  ?  Could 
he  remember  as  Nicbuhr  did,  he  might  dispense  with 
memoranda.  Lieber,  in  his  reminiscences  of  the  historian, 
who,  be  it  understood,  had  never  visited  Greece,  says :  — 

"  When  I  had  just  returned  from  Greece  and  described 
certain  spots  to  him,  he  would  ask  for  by-ways,  remains  of 
wells,  paths  over  ridges,  or  other  minute  details,  as  if  he 
had  been  there.  As  many  of  the  objects  for  which  he 
asked  exist  still  and  I  had  seen  them,  I  was  amazed  at  his 
accurate  knowledge.  '  0,'  said  he,  '  I  never  forget  any- 
thing I  have  once  seen,  read,  or  heard.' " 

Is  there  an  American  lawyer  who  has  such  a  memory  ? 
If  there  is,  we  concede  that  he  can  manage  even  his  intri- 
cate cases  without  a  brief. 

§  292.  If  you  have  done  as  we  desire  you  to  do  in 
your  preparation,  you  have  kept  memoranda  of  everything. 
You  have  jotted  down  the  controlling  legal  positions  and 
the  supporting  authorities.  You  have  notes  of  your  evi- 
dence and  also  of  that  which  you  anticipate  that  the  ad- 
versary will  bring  forward.  When  you  see  that  the  close 
of  the  preparation  is  at  hand,  you  should  make  uf)  your 
brief,  wliich  is  the  final  digest  of  the  preparation.     If  it  is 


204  CONDUCT   OUT   OF   COURT. 

well  made,  another  lawyer  could,  after  giving  it  a  short 
study,  try  the  case  almost  as  well  as  you. 

§  293.  To  do  this  ini})()rtant  work  well  requires  much 
ability.  Mr.  Warren,  addressing  himself  to  English  at- 
torneys and  solicitors,  expresses  himself  thus :  "  I  cannot 
(luit  this  part  of  the  subject  without  suggesting  the  pro- 
priety of  making  logic  one  of  the  early  studies  of  those 
preparing  for  your  branch  of  the  profession.  Only  con- 
sider how  necessary  it  is  to  have  some  acquaintance  with  it 
in  order  to  be  able  to  deal  successfully  with  such  cases  as  I 
have  just  been  speaking  of  [patent  and  copyright  cases],  — 
nay,  to  deal  with  any  —  with  all  —  cases  requiring  clear 
and  methodical  treatment  by  you  in  order  to  set  them  in 
proper  order  and  in  a  right  direction  for  legal  adjudica- 
tion. IIow  charming  is  it  to  the  finest  intellect  to  have  to 
deal  with  a  brief,  however  ponderous  and  disheartening  in 
bulk  and  appearance,  which  on  being  opened  displays  the 
possession  on  the  part  of  the  attorney  or  solicitor  who 
drew  it  up  of  those  qualifications  which  I  am  now  urging 
on  you :  the  language  elegant,  simple,  and  nervous ;  dis- 
figured by  no  senseless  repetitions,  no  vulgar  colloquial- 
isms, by  nothing  impertinent  or  intemperate  ;  and  lucidus 
ordo  shining  in  every  page.  How  much  of  the  triumph 
achieved  by  the  most  eminent  counsel  is  not  really  shared 
by  the  framer  of  such  a  brief  as  I  am  speaking  of?  and 
who  could  not  have  been  surpassed  even  if  that  very  coun- 
sel had  sat  down  himself  to  draw  up  the  brief  from  which 
he  was  to  speak."  ^ 

§  294.  A  brief  is  to  be  made  up  gradually.  The  mate- 
rials may  be  long  collecting  and  arranging.  Many  lawyers 
enter  their  authorities  in  a  blank-book  under  the  name  of 

1  Duties  of  Attorneys  and  Solicitors,  Am.  ed.  66. 


BRIEFS.  205 

the  case,  but  you  will  find  it  more  convenient  to  have 
them  on  loose  paper,  to  be  transferred  to  your  press-book 
when  they  have  been  finally  sifted  and  sorted.  In  fact  all 
of  your  notes  —  those  of  the  evidence  as  well  as  of  law  — 
should  be  made  on  loose  paper.  Never  write  on  but  one 
side  of  the  paper.  Youi-  paper-knife  and  nmcilage  bottle 
will  save  you  or  your  clerk  a  world  of  tiresome  transcrip- 
tion if  your  notes  are  not  written  upon  both  sides,  for  you 
can  then  tear  out  and  insert  as  you  please  in  any  particular 
page  without  destroying  anything  on  the  opposite  page. 

§  295.  We  will  give  a  pertinent  passage  from  Mr. 
Bishop  :  —  "  There  are  things  which  must  be  taken  down 
for  future  use.  They  do  not  so  much  occur  when  one  is 
engaged  in  the  study  of  the  law,  as  when  afterwards  he 
enters  upon  its  practice.  If,  for  example,  a  brief  is  to  be 
made  out  in  a  cause  which  is  to  be  argued  on  a  question 
of  law  before  the  court,  the  person  making  the  brief  needs 
to  note  down  the  authorities  as  he  finds  them.  Then  he 
collects  his  points  and  writes  them  down,  points  and  au- 
thorities together.  In  like  manner,  if  a  lawyer  is  looking 
up  a  question  on  which  to  ad\'ise  a  client,  he  should  make 
such  references  as  will  enable  him  if  litigation  is  afterwards 
carried  on  to  go  on  with  the  case  without  a  fresh  search 
into  the  books  for  what  is  already  found.  This  is  a  labor- 
saving  expedient.  "  ^  And  in  a  subsequent  place  he  shows 
the  convenience  of  having  the  notes  on  separate  slips,  each 
one  being  labelled  with  its  proper  name.^ 

It  is  worthy  of  observation  that  the  distinguished  au- 
thor, in  the  excerpt  given,  ftills  into  the  American  habit 
of  restricting  a  brief  in  meaning  to  the  scheme  of  a  law 
argument.     It  must  be  remembered  that  the  lawyer  has 

1  First  Book,  §  423.  2  n^id.,  §  426. 


206  CONDUCT   OCT   OF   COURT. 

need  for  a  proper  system  of  making  and  preserving  notes  of 
every  item  of  liis  preparation.  In  another  place,  referred  to 
in  the  foot-note,  we  have  been  at  pains  to  show  what  is 
this  proi)er  system.^ 

§  29().  But  now  let  us  go  somewhat  into  systematic  de- 
tail. And,  first,  the  English  authorities  agree  that  the  brief 
should  contain  a  copy  of  the  pleadings,  or,  to  use  the  words 
of  Tidd  given  above,  "  a  full  abstract. "  Some  contend 
that  there  should  always  be  copies.  This  will  probably  bo 
preferred  in  England  where  the  briefs  are  not  prepared  by 
the  counsel.  Thus  Choate  is  represented  as  insisting  that  a 
person  who  was  to  report  the  testimony  in  a  certain  case 
should  set  down  everything  just  as  it  fell  from  the  lips  of 
each  witness.  Of  course  Choate  would  put  his  own  meaning 
on  the  e\idence,  and  that  meaning  might  be  very  small  as 
compared  with  the  volume  of  the  report.  An  English  coun- 
sel would  likewise  prefer  to  abridge  the  pleadings  for  him- 
self. But  what  is  the  better  for  American  counsel,  who  make 
their  briefs  themselves  ?  As  the  form  of  pleading  becomes 
year  by  year  of  less  importance,  it  seems  unnecessary  to 
give  more  than  enough  of  the  substance  to  understand 
definitely  the  issue.  Suppose  that  there  is  a  suit  upon  a 
promissory  note  and  the  defendant  has  pleaded  non  est 
factum.  A  short  abstract  or  a  copy  of  the  note,  as  the 
cause  of  action,  and  a  note  of  the  defence  by  name,  states 
the  pleadings  with  sufficient  accuracy.  And  this  state- 
ment is  neater  than  a  copy  of  the  declaration  and  plea,  and 
it  is  more  saving  of  time  to  yourself,  or  to  your  associate 
who  may  have  to  learn  the  case  from  you.  But  there  are 
many  cases  where  the  issues  cannot  be  stated  so  shortly. 
Here  the  pleadings  must  be  meditated  carefully  so  that  the 

1  American  Law  Studies,  §§  228-234. 


BRIEFS.  207 

abstract  fully  present  their  substance.  A  lucid  abridg- 
ment gives  you  a  firmer  grasp  and  enables  you  to  bring  the 
court  to  a  more  speedy  understanding  of  the  case.  Of 
course  this  work  must  be  correctly  done.  All  of  the  genu- 
ine success  of  the  lawyer  —  his  most  brilliant  achievements 
of  professional  skill  and  his  greatest  feats  of  eloquence  — 
are  founded  upon  the  utmost  accuracy  of  knowledge  of 
details.  You  should  consider  your  abridgment  of  the 
pleadings  until  you  feel  sure  that  it  is  complete  and 
fiiithful.  To  give  the  substance  of  voluminous  and  ill- 
arranged  matter  in  the  true  natural  oi-der  is  a  great  talent. 
For  instance,  how  often  do  we  find  that  a  head-note  is 
mistaken  in  some  respect !  A  copyist  exercises  only  his 
eyes,  but  one  who  accurately  comj^resses  a  diffused  and 
disjointed  mass  into  its  smallest  intelligible  statement  has 
one  of  the  highest  talents  of  the  lawyer. 

We  suggest  that  you  attach  to  your  brief  copies  of  com- 
plicated pleadings,  so  that  opportunity  be  always  afforded 
you  or  your  associate  to  decide  if  your  presentation  is  reli- 
able and  to  correct  any  of  its  faults. 

§  297.  Next  there  must  be  a  statement  of  the  case  of 
the  client  and  that  of  the  adversary  as  anticipated,  this 
statement  including  material  points  both  of  fact  and  law. 
It  should  be  like  that  of  the  pleadings  just  recommended, 
as  condensed  as  is  compatible  Avith  clearness.  The  fiiult 
most  common  here  is  that  the  feelings  of  the  advocate  un- 
consciously mislead  him.  A  real  lawyer  soon  learns  to  sus- 
pect that  every  narrative  of  a  client  is  a  misrepresentation 
in  some  particulars.  Self-interest  excites  with  a  desire 
to  paint  the  case  better  than  the  reality.  Parties  seem 
often  to  believe  that  by  doing  this  they  improve  their  cases. 
And  many  lawyers  are  similarly  affected.     Even  when  one 


208  CONDUCT   OUT   OF   COURT. 

is  consulting  his  brethren  in  tlie  free  intercourse  which 
characterizes  the  bar,  it  is  not  always  that  you  hear  him  put 
his  case  exactly.  Some  detail,  slight  it  may  be,  or  some 
coloring,  is  added  or  omitted.  A  lawyer  had  better  by  far 
learn  habitually  to  overstate  his  own  weakness  and  the 
case  of  his  adversary,  and  tax  himself  with  the  additional 
inventiveness  necessary  to  meet  the  imaginary  dangers,  than 
cultivate  a  disposition  to  sleep  in  a  false  security.  It  is 
therefore  to  be  emphasized  that  the  statement  be  fair. 

The  additions  which  Scarlet  made  to  the  brief  of  the 
attorney  are  to  be  borne  in  mind.  He  tells  us  in  his  Au- 
tobiography :  — 

"  The  mode  which  I  adopted  to  obtain  the  facts  was  to 
interrogate  the  attorney  when  he  came  with  his  brief  what 
was  the  fact  in  his  own  case  on  which  he  mainly  relied. 
Next,  what  he  supposed  his  adversary's  case  to  depend 
upon.  Having  made  a  short  note  of  his  statement  on  the 
back  of  the  brief,  I  proceeded  to  discuss  the  appeal  with- 
out further  instruction  or  meditation.  .  .  . 

"  In  like  manner,  when  I  began  to  lead  causes  in  the 
superior  courts,  it  was  my  practice  to  inquire  of  my  junior 
counsel  w'hat  were  the  points  on  both  sides,  and  to  make  a 
minute  of  those  on  the  back  of  the  brief."  ^ 

§  298.  We  intend  more  than  the  statement  of  the  Eng- 
lish attorney  upon  which  the  case  is  answered  by  counsel. 
What  we  mean  is  a  presentation  of  the  leading  proposi- 
tions of  your  side,  those  of  the  other  as  far  as  you  can 
divine  them,  and  the  way  in  which  you  seek  to  avoid  the 
latter.  By  means  of  this  the  trial  can  be  fitly  managed 
and  the  argument  rightly  made.     Of  course  it  is  apparent 

^  Memoir  of  Lord  Abinger,  61,  62.  See  American  Law  Studies,  §  773, 
for  a  fuller  citation. 


BRIEFS.  209 

that  in  its  final  form  tlic  statement  we  insist  upon  is  one 
of  the  very  last  insertions  to  be  made  in  the  brief. 

§  299.  The  English  authorities  say  that  the  brief  should 
contain  the  proofs  marshalled  and  a  list  of  the  witnesses. 
We  agree  to  this,  and  we  suggest  that  there  should  be 
added  a  list  of  the  expected  witnesses  and  proofs  of  the 
other  side. 

The  list  of  your  witnesses  is  important.  How  often 
have  all  of  us  been  wearied  by  waiting  in  court  for  some 
counsel  to  find  out  who  are  his  witnesses  before  he  can 
have  them  called !  But  besides  the  convenience  and  econ- 
omy of  preserving  the  names,  there  results  to  you  a  still 
greater  advantage  from  keeping  these  lists.  Whenever 
you  open  the  papers  to  add  somewhat,  be  it  ever  so  little, 
your  eyes  catch  these  names,  —  both  those  of  your  own 
and  of  the  adverse  witnesses.  They  are  imprinted  on  your 
memory,  and  as  you  go  about  following  up  the  many  calls 
which  disperse  your  eff"orts  through  a  large  society,  there 
is  no  estimating  the  additional  testimony  that  you  will  get 
for  your  client,  and  the  crippling  and  checking  that  you 
will  work  to  the  adversary.  A  lawyer  nnist  always  carry 
his  cases  in  mind,  and  especially  should  his  recollection  of 
the  e\idence  be  full  and  ready. 

§  300.  Special  attention  must  be  given  to  the  documen- 
tary proofs.  The  same  arguments  made  above  in  favor  of 
making  abstracts  of  pleadings  apply  here.  Even  if  the 
lawyer  hires  copies  to  be  taken,  he  had  better  form  the 
habit  of  adding  a  short  abstract.  When  his  cause  is  at  last 
reached  after  it  may  be  some  years  of  the  "  law's  delay, " 
with  his  head  full  of  a  multiplicity  of  other  affairs,  he  will 
not  regret  that  he  has  so  compressed  the  volume  of  the 
testimony  that  he  can  gather  it  all  up  at  once. 

14 


1>10  CONDUCT   OUT   OF   COl'liT. 

When  the  (h)cuinent  is  of  unusual  cliaracter,  as  for  in- 
stance a  deed  containing  a  condition,  and  wlien  the  issue 
is  on  the  condition,  the  abstract  siiouhl  be  followed  by  a 
note  of  your  conception  of  its  legal  force  and  effect.  This 
will  let  your  associate  into  your  views  at  once,  and  he  may 
give  you  valuable  corrections  or  additions. 

§  :301,  You  often  see  the  plaintiff  nonsuited  or  a  ver- 
dict returned  against  the  defendant  because  of  a  neglect 
to  bring  in  evidence  the  existence  of  which  is  apparent. 
The  lawyer  who  is  in  the  habit  of  putting  on  paper  the 
proofs  necessary  to  uphold  the  allegations  of  his  pleadings 
rarely  makes  the  mistakes  just  mentioned.  He  can  in  no 
other  way  so  surely  come  to  the  trial  with  complete  proofs. 

§  302.  There  are  some  other  matters  to  be  thought  of. 
You  may  anticipate  collateral  questions.  Thus  you  may 
be  met  with  serious  objection  to  some  of  your  offered  evi- 
dence. Whenever  you  can  anticipate  such  objection  your 
answer  to  it  should  be  noted  at  the  proper  place  in  your 
brief.  And  you  should  prepare  objections  to  what  you 
anticipate  will  be  the  proof  of  the  other  side. 

§  303.  Cautions  to  yourself  and  associate  are  sometimes 
proper.  Thus  Mr.  W^arren,  in  the  work  from  which  we  take 
so  much  in  this  chapter,  advises  the  attorney  when  the  fact 
authorizes  it  to  make  some  such  memorandum  in  his  brief 
opposite  to  the  proof  as  the  following  :  "  This  witness  is 
exceedingly  eager  and  zealous,  and  will  be  required  to  be 
held  with  a  tight  rein."  Addressino;  the  attornev  in  an- 
other  passage,  he  says  :  "  Be  sure  to  apprise  counsel  in  your 
briefs  of  every  blot  which  you  think  it  probable  that  your 
opponent  may  be  able  to  detect  in  the  character  of  your  wit- 
nesses.    This  is  a  matter  of  great  consequence." 

§  304.    These  hasty  words  are  only  suggestive.     The 


BRIEFS.  211 

fawyer  can  add  to  them  in  any  particular  case  by  asking 
himself  and  answering  the  question,  "  What  material  par- 
ticular of  my  knowledge  of  the  facts,  or  my  preparation, 
does  the  brief  fail  to  show  ? " 

When  a  brief,  thoroughly  and  in  a  right  arrangement, 
contains  every  item  of  such  knowledge  and  preparation,  it 
is  perfect. 

§  305.  As  we  have  hinted  above,  there  should  be  a  neat 
draft  of  the  plan  of  conduct.  Coinciding  so  nearly  as  it 
does  with  the  statement  of  the  case  which  we  have  ex- 
plained in  this  chapter,  it  is  the  key  to  all  the  rest. 

§  306.  Lastly,  if  the  brief  is  voluminous,  it  should  be 
indexed.  The  use  and  economy  of  the  index  are  so  appar- 
ent that  we  will  say  nothing  more  of  the  matter. 

§  307.  I  now  subjoin  a  passage  of  considerable  length 
from  Mr.  ^Varren.  My  own  differences  from  his  positions 
have  been  already  intimated.  The  reader  is  reminded  that 
he  is  addressing  attorneys  and  solicitors,  who  in  England 
never  act  as  counsel. 

§  308.  "  Give  the  pleadings  at  length ;  not  contenting 
yourself  with  merely  indicating  their  substance  and  eifect. 
A  sheet  or  two  spared  by  these  means  is  no  compensation 
for  the  serious  inconvenience  and  dangers  often  attending 
it.  Counsel  may  be  much  misled  by  your  so  doing.  The 
cause  often  depends  upon  the  very  words  in  which  the 
pleadings  are  couched,  and  on  which  critical  issues  have 
been  taken.  I  saw  not  long  ago,  for  instance,  a  plaintiff's 
counsel  about  to  submit  to  his  adversary,  owing  to  the 
attorney  of  the  former  having  misled  him  as  to  the  real 
nature  of  the  pleadings.  He  had  said  as  to  the  only  spe- 
cial plea,  '  The  replication  denies  the  agreement,'  w^hich 
was  proved  as  alleged  in  the  plea ;  but  the  judge  pointed 


212  CONDUCT  OUT  OF  COURT. 

out  tliat  the  plaintiff  stood  mucli  more  favorably  on  the 
record,  —  his  replication  being  de  injuria, — which  put  in 
issue  every  traversable  fact  alleged  in  the  plea.  Now, 
why  could  not  the  replication  have  been  set  forth  fully 
and  correctly  in  the  brief? 

§  309.  "  Never  let  a  brief  go  into  counsel's  hands  with 
blanks  on  it  for  names,  dates,  or  sums  of  money.  It  not 
only  has  a  very  slovenly,  unbusincss-like  appearance,  but 
often  greatly  embarrasses  counsel,  who  may  not  have  you 
at  their  elbow  to  supply  them  with  the  necessary  informa- 
tion. No  brief  should  be  regarded  by  you  as  complete 
till  you  shall  have  carefully  gone  over  it  and  filled  up  every 
blank  ;  or  if  that  be  for  any  sufficient  reason  impracticable 
before  delivering  the  brief,  take  care  to  say  as  much  on  the 
margin. 

§  310.  "When  there  are  two  or  more  briefs,  and  espe- 
cially if  they  be  of  length,  or  intricate  in  detail,  or  refer  to 
many  documents,  use  your  utmost  efforts  to  have  the  pages 
of  all  the  briefs  numbered  alllie,  so  that  any  one  counsel, 
having  found  what  is  required  during  the  progress  of  the 
cause,  may  in  an  instant  place  his  companions  in  the  same 
situation.  Your  law  stationer  is  surely  bound  to  obey 
your  orders  in  this  respect.  I  have  heard  a  neglect  of 
this  matter  often  loudly  complained  of,  and  with  justice,  as 
both  inconvenient  and  irritating  on  sudden  exigencies.^ 

§  311.  "In  cases  of  a  little  more  difficulty  or  impor- 
tance than  usual,  you  may  greatly  facilitate  the  labors  of 

1  If  the  briefs  are  printed,  or  if  the  copies  are  made  by  the  multiplying 
mechanical  processes  lately  come  into  vogue,  such  as  by  the  use  of  pads  or 
manifold  paper,  the  pages  of  all  will  be  alike.  But  if  each  copy  is  to  be 
made  by  hand,  it  is  well  to  divide  the  original  into  short  sections  and 
number  them  consecutively,  for  if  the  copies  are  accurate  the  sections  of  all 
will  correspond  tliough  the  pages  differ. 


BRIEFS.  213 

counsel  and  enable  them  readily  to  do  their  duty  by  prefix- 
ing to  the  brief  a  neat  analysis  of  the  case,  of  both  plead- 
ings and  facts,  referring  to  the  different  pages  in  the  brief 
where  they  will  be  found ;  and  above  all  giving  an  alpha- 
betical index  of  the  names  of  the  witnesses  and  the  pages 
where  their  proofs  are  placed. 

§  312.  "If  you  have  obtained  what  you  may  deem  an 
able  opinion  upon  the  case,  or  even  upon  the  evidence  ne- 
cessary to  support  it,  copy  that  opinion  in  your  brief  for  the 
guidance  of  counsel  at  the  trial :  whom  it  may  quickly  put 
in  possession  of  the  true  bearings  of  the  cause  and  apprise 
them  of  its  difficulties,  timely  enabling  them  better  to  deal 
with  them.  The  most  eminent  leading  counsel  by  no 
means  regard  such  assistance  as  superfluous,  but  on  the 
contrary  welcome  it.  More  than  once  have  I  seen  them, 
when  a  cause  was  ■  called  on  before  they  had  had  time  to 
read  their  briefs,  as  it  were  devour  the  '  opinion  '  written 
by  some  able  and  experienced  junior,  and  rise  soon  after- 
wards wonderfully  possessed  of  the  case,  especially  when 
engaged  for  the  defendant. 

§  313.  "  Whenever  your  case  involves  localities  let  me 
entreat  you  to  take  the  trouble  of  giving  a  faithful  sketch 
of  the  locus  in  quo  on  one  of  the  pages  of  your  brief  or 
on  a  separate  paper.  A  single  glance  at  a  spirited  and 
faithful  sketch  of  the  scene  of  action  will  be  worth  half  a 
dozen  consultations.  It  will  fix  the  matter  firmly  in  your 
counsel's  mind  and  prevent  him  from  either  being  confused 
himself  or  suffering  the  witnesses,  judge,  or  jury  to  be  con- 
fused. Take  care  also  to  have  several  copies  in  readiness 
(being  able  to  prove  their  accuracy)  to  lay  before  the  jury 
while  counsel  is  addressing  them,  —  a  matter  that  of  no 
slight  importance  to  your  client's  interests.     A  good  model 


2H  CONDUCT  OUT  OF  COURT. 

of  premises  or  machinery  is  of  incalculable  service  in  giving 
counsel,  and  enabling  them  to  give  others,  a  clear  view  of 
the  case  which  it  illustrates.  Durin;^  last  Easter  Term  the 
Court  of  Common  Pleas  was  occupied  for  an  entire  day 
with  a  troublesome  motion  for  a  new  trial  in  a  patent  case. 
There  was  no  model  to  illustrate  the  statements  of  counsel 
or  the  endence  of  witnesses.  The  judges  found  it  almost 
impossible  to  deal  satisfactorily  with  the  case  ;  and  at  the 
close  of  the  day,  one  of  them  (Mr.  Justice  Maule),  as  the 
court  rose,  observed  :  '  In  the  absence  of  a  model  the  evi- 
dence might  really  all  have  been  read  the  ivrong  ivay.' 

§  314.  "  Take  special  care,  however,  that  your  plan  or 
model  be  fair,  —  perfectly  faithful,  —  made  by  a  disinter- 
ested person,  with  no  instructions  whatever  but  to  prepare 
an  impartial  and  accurate  representation  of  the  reality  ; 
one  which  will  be  acquiesced  in  by  the  opposite  side  and 
by  the  witnesses.  This  will  obtain  for  you  credit,  with 
both  the  judge  and  jury,  for  the  fair  and  candid  spirit  in 
which  you  have  brought  forward  your  case ;  and  that  credit 
may  serve  to  turn  the  scale  in  your  favor  in  a  question  of 
doubt  and  difficulty.  An  opposite  course  of  conduct  is 
almost  certain  to  prejudice  you  in  professional  and  public 
estimation,  and  throw  discredit  on  your  client  and  his  case, 
seriously  endangering  one  otherwise  characterized  by  bona 
fides."  ^ 

§  315.  Of  course  if  there  are  important  questions  of  law 
in  the  case,  a  part  of  the  brief  should  be  devoted  to  them. 
For  matters  easily  disposed  of,  a  mere  note  of  a  statute,  or 
a  late  State  or  Federal  decision,  or  some  reliable  text-book, 
may  suffice.  But  where  a  lengthy  examination  of  statutory 
clauses  and  decisions  is  necessary  in  order  to  educe  the  law 

1  Duties  of  Attorneys,  etc.,  178  et  scq. 


BRIEFS.  215 

with  accuracy,  you  should  briefly  indicate  the  substance  of 
the  clauses,  and  the  pith  of  the  rulings,  and  the  facts  to 
which  they  were  applied.  You  will  rejoice  that  you  took 
this  extra  pains  when  you  come  to  try  your  case  a  long 
while  after  the  brief  was  made.  If  you  have  contented 
yourself  ^\^th  mere  citations  it  may  require  more  effort  to 
revive  the  argument  than  you  can  well  spare  in  your  limited 
time. 

§  316.  One  only  needs  to  consult  the  rules  of  practice  in 
the  ditierent  States,  and  hear  the  almost  universal  American 
use  of  the  word  "brief"  in  the  restricted  sense  of  a  skele- 
ton of  legal  positions  with  relevant  authorities,  mentioned 
above,  in  order  to  see  how  widely  we  differ  in  the  estimate 
of  briefs  from  the  English.  The-  grade  of  attorneys  and 
solicitors  never  was  separate  here  from  that  of  counsel. 
Every  practitioner  perhaps  was  ambitious,  and  arrogated  to 
himself  the  superior  rank.  In  the  mother  country  it  was 
the  duty  of  attorneys  to  prepare  briefs,  but  as  he  was  no 
attoincy  he  would  not  do  the  degrading  work.  Thus 
briefs  seem  never  to  have  been  introduced  into  general 
use  in  America.  That  counsel  here  have  direct  contact 
with  witnesses  and  party,  and  are  all  the  while  personally 
cognizant  of  every  detail  of  their  cases,  not  learning  them 
at  second  hand,  is  to  my  mind  an  almost  incalculable  su- 
periority of  the  American  over  the  English  system.  But 
we  have  not  improved  our  system  into  what  it  should  be. 
Our  counsel  should  not  alone  get  up  a  case  better  than  the 
English  attorneys,  but  they  should  also  draw  better  briefs. 
The  practice  of  law  without  briefs  is  as  slovenly  and  primi- 
tive as  the  score  kept  with  chalk-marks.  Do  but  note  one 
of  our  brethren  who  goes  on  in  this  slipshod  manner.  He 
becomes  a  nuisance  by  keeping  in  his  possession  original 


21 G  CONDUCT   OUT   OF   COURT. 

papers  which  should  never  leave  the  clerk's  office.  lie 
never  recollects  exactly  the  contents  of  documentary  evi- 
dence, and  he  often  forgets  the  very  authorities  on  wiiich 
his  case  depends.  Tins  is  all  wrong.  It  is  wasteful  of 
time.  It  is  criminal  negligence  of  the  client's  cause  in- 
trusted. Tlie  practitioner  should  always  be  able  in  his 
office,  without  any  assistance  except  his  brief  or  the  mem- 
oranda which  he  has  taken,  each  at  its  appropriate  step  in 
the  preparation,  to  give  a  clear  statement  of  the  case. 
One  who  has  never  tried  this  careful  preparation  cannot 
understand  how  the  making  of  a  sufficient  brief  facilitates 
the  conquest  of  the  case.  This  advantage  alone  is  more 
than  compensation  for  the  labor.  No  attack  or  defence 
can  be  too  well  meditated  or  understood,  nor  can  the  op- 
erations of  the  other  side  be  too  well  conjectured.  And 
it  is  just  as  hard  accurately  to  shape  the  conduct  of  an  in- 
tricate case  and  hold  its  preparation  in  your  head  without 
a  brief  or  memoranda  answering  to  it,  as  it  is  to  compose 
and  get  by  heart  a  long  speech  without  writing  any  of  it. 
The  feat  has  been  accomplished.  But  we  know  that  to 
write  the  speech  and  afterwards  learn  it  is  the  quicker  and 
better  way. 

§  .317.  All  the  papers  belonging  to  a  particular  case 
sliould  always  be  kept  together.  It  is  no  task  to  keep 
them  in  proper  order.  First  the  pleadings,  —  copies  or  ab- 
stracts. Next,  the  memoranda  of  the  expected  testimony, 
oral  or  written,  of  your  side  and  of  the  other.  These  to  be 
accompanied  by  copies  of  documents,  depositions,  and  all 
such  matters.  Then  your  notes  of  agenda.  Your  authori- 
ties may  find  place  afterwards.  Towards  the  close  of  the 
preparation  you  can  intercalate  the  final  statement  of  the 
case  and  add  the  last  draft  of  the  plan  of  conduct.     And 


BRIEFS.  217 

so  your  brief  is  complete.  You  have  not  missed  the  time 
spent  in  its  making.  If  the  cause  is  difficult  and  involved, 
when  you  recollect  the  many  times  you  have  referred  to 
this  collection,  and  that  it  has  easily  kept  you  up  with  all 
the  necessities  of  preparation,  you  wonder  how  you  could 
have  done  without  it.  It  may  look  cumbrous  and  un- 
wieldy, but  to  you  it  is  systematic  and  lucid.  You  had 
better  not  attach  the  papers  together,  for  if  you  do  not 
they  can  be  added  to  or  replaced  ad  libitum  in  your  office, 
or  a  particular  one,  say  the  citations  or  the  list  of  witnesses, 
can  be  used  separately  in  court  and  with  more  convenience. 

There  is  no  Procrustean  model  of  briefs.  They  vary 
with  the  cases.  A  particular  one  should  be  the  accurate 
miniature  of  its  case.  If  the  case  is  simple,  the  brief  will 
be  simple ;  if  it  is  complex,  all  its  elements  appearing  in 
the  brief  will  make  it  complex  too. 

§  318.  I  have  to  add  a  last  caution,  and  then  I  have 
done  with  the  subject  of  this  chapter.  You  are  not  to 
cultivate  a  slavish  dependence  on  your  brief  as  the  reposi- 
tory of  your  preparation  and  the  record  of  your  anticipa- 
tions and  premeditated  plan  of  conduct.  You  anticipate 
and  provide  for  as  much  as  you  can  in  order  to  have  larger 
supplies  out  of  which  to  meet  on  the  sudden  every  exi- 
gency. The  ground  and  possibly  the  dispositions  of  his 
enemy  are  known  to  the  general  before  the  battle  begins. 
But  he  does  not  essay  to  fight  a  set  battle  any  more  than 
the  lawyer,  for  all  of  his  forecast,  anticipates  a  set  trial. 
Neither  will  be  surprised  by  any  action  of  the  other  side, 
however  unexpected.  The  plan  of  contest  of  each  is  not 
rigid,  but  is  pliant  and  responsive  to  even  unforeseen  needs. 
The  most  happy  extemporaneous  efforts  of  speech  or  action 
are  made  by  men  who  have  the  whole  business  as  it  were 
by  heart.     Observe  an  old  lawyer  who  comes  to  argue  a 


218  CONDUCT  OUT  OF   COURT. 

law  point.     Possibly  he  lias  the  scheme  of  what  he  would 
say  upon  paper.    A  question  from  the  judge  presents  a  new 
view.     The  lawyer  abandons  his  prepared  argument  and 
speaks  only  to  the  suggestions  that  fall  from  the  bench. 
And  he  often  triumphantly  sustains  his  case.     Why  can 
he  do  this  ?     Because  he  is  thorough  master  of  the  sub- 
ject, and  being  that  he  can  eftectivcly  handle  it  from  any 
standpoint.     And  so  the  practitioner  should  always  be  on 
the  eve  of  trial.     His  brief,  containing  a  year's  assiduous 
preparation,  it  may  be,  will  often  be  abandoned  when  he 
is  in  the  midst  of  the  exciting  encounter.     There  have 
been  developments  which  he  did  not  anticipate,  and  the 
entire  phase  of  the  case  seems  changed.     But  with  his 
skilful  preparation  he  has  come  not  only  armed  to  meet 
what  is  anticipated,  but  armed  too  for  that  which  is  not. 
If  you  have  never  looked  into  the  case  till  the  night  before 
the  trial,  and  you  then  win  it  by  an  unexpected  feat  after 
a  scaring  menace  of  disaster,  you  are  proud.    Your  ingenu- 
ity enraptures  you,  and  you  feel  that  you  are  a  great  man. 
Out  of  what  was  that  stroke  made  which  laid  the  adver- 
sary low  ?     It  was  aimed  from  a  knowledge  that  you  had 
acquired  in   only  a  few  hours.     Perhaps  had  you  come 
carefully  prepared  there  never  would  have  been  that  dark 
hour  which  threatened  you.     You  might  have  foreseen  and 
provided  against  it,  or  perhaps  you  might  have  planned 
and  achieved  a  much  more  brilliant  ^^ctory.     It  stands  to 
reason  that  you  should  be  more  full  of  resources  in  a  case 
which  you  have  studied  long  and  well,  than  in  one  to 
which  you  have  given  only  a  few  hours'  attention. 

Your  preparation  and  your  brief  are  not  for  a  pre-estab- 
lished conduct  of  the  case  only.  They  are  a  training  to 
do  your  utmost  and  best  wherever  and  whenever  fortune 
may  dictate  that  you  make  trial  of  the  adversary. 


BOOK  II. 
CONDUCT   IN   COUET. 


BOOK  II. 
COXDUCT  IN  COUET. 


CHAPTER  VII. 


IXTRODUCTORY. 


§  319.  We  have  fi-equently  illustrated  our  subject  from 
the  correspondences  of  the  military  art,  and,  as  we  have 
said,  we  arc  half  inclined  to  entitle  this  Book  ''  The  Tac- 
tics of  Litigation."  In  war,  after  the  campaign  has  been 
planned  and  the  army  gathered  upon  the  decisive  point 
according  to  the  manual  of  strategy,  the  engagement  itself 
must  be  fought  according  to  another  manual.  The  former 
concentrates  the  greatest  possible  force  on  the  field,  while 
the  latter  obtains  from  the  force  its  greatest  possible 
achievement  in  battle.  And  thus  in  litigation,  after  a  care- 
ful preparation  has  brought  the  parties  to  prove  the  for- 
tunes of  a  trial,  the  trial  is  to  be  conducted  according  to 
other  principles  than  those  of  preparation. 

§  320.  Conduct  in  Court,  as  we  name  the  subject  of 
this  book,  is  generally  called  Advocacy.  It  is  the  art  of 
having  all  of  your  resources  to  count  their  greatest  in  the 
forensic  contention,  and  of  impairing  as  much  as  you  can 
those  of  the  adversary.  To  authors  and  to  the  multitude 
it  has  long  displaced  the  more  important  division  of  prepa- 
ration, and  they  deem  it  the  only  essential.     Excellence  in 


222  CONDUCT  IN  COURT. 

advocacy  is  conspicuous  and  the  crown  of  success  brilliant, 
for  the  effort  is  in  i)ul)lic,  where  many  usually  see  and  com- 
prehend, while  on  the  other  hand  the  most  superb  prepara- 
tion M'ill  be  understood  by  only  the  lawyers  engaged.  A 
showy  counsel  who  is  the  attraction  of  all  eyes  and  cai-s  in 
the  court-room  is  often  but  the  mouth-piece,  and  an  ineffi- 
cient one  at  that,  of  some  hard-working  and  cool-headed 
associate  who  has  industriously  collected  and  skilfully 
grouped  the  materials  of  his  side  and  has  with  the  divina- 
tion of  genius  foreseen  the  adversary's  line  of  operations 
and  provided  against  it.  And  yet  to  manage  a  trial  ably 
from  beginning  to  end  often  requires  a  high  degree  of  spe- 
cial talent.  In  the  office  and  consultation-room  there  is 
opportunity  of  procrastination  and  review,  but  in  court  the 
counsel  leading  must  in  many  straits  reach  his  conclu- 
sions by  a  flash  and  then  act  upon  them  as  confidently  and 
surely  as  if  he  had  been  thinking  them  over  for  weeks.  To 
open  in  the  beginning  the  ear  of  the  court  and  jury  to 
yourself  and  to  close  it  to  your  antagonist ;  to  know  when 
you  have  done  with  your  witness ;  to  detect  at  once  the 
hidden  inconsistency  of  the  hostile  witness  with  stronger 
evidence,  or  his  self-contradiction,  and  decide  well  whether 
to  leave  him  as  he  is  for  the  argument  or  take  the  risk  of 
his  escape  from  the  toils  if  he  is  pressed  further  in  cross- 
examination  ;  to  grasp  thoroughly  at  all  times  the  entire 
case  made  by  the  other  side  ;  to  feel  surely,  as  it  were,  the 
leaning  of  the  judge,  and  to  lead  him  if  it  is  adverse  upon 
other  ground  or  to  confirm  him  if  it  is  favorable ;  to  read 
every  meaning  look  of  counsel,  party,  witness,  juror,  or 
court ;  to  remember  and  forget  wisely  through  the  entire 
course  of  the  evidence  and  argument ;  —  these  are  the 
daily  achievements  of  the  ready  lawyer. 


INTRODUCTORY.  223 

§  321.  And  it  is  rare  tliat  tlie  talent  to  prepare  a  case 
and  the  talent  to  manage  it  in  court  are  united  eacli  in 
its  highest  form.  Often  both  talents  are  possessed  by  the 
same  man,  though  one  is  generally  in  decided  excess  of 
the  other.  Thus  Napoleon  was  not  deemed  the  match  of 
Moreau,  one  of  his  marshals,  in  tactics,  while  he  was  in- 
finitely superior  in  strategy  and  general  military  ability. 
There  are  commanders  and  lawyers  who  always  have  every- 
thing important  cut  and  dried,  and  they  thereby  win  a  large 
proportion  of  battles  and  cases.  Yet  many  of  them  are 
not  perfect  in  their  art,  for  tliey  are  unduly  disconcerted  by 
unexpected  occurrences.  In  contrast,  there  are  generals 
who  never  evince  any  force  of  character  until  they  are  sur- 
prised by  the  appearance  of  the  foe,  when  they  triumph  by 
seducing  fortune  ;  and  there  is  a  class  of  ready  and  shrewd 
advocates  who  defer  all  serious  exertion  until  the  critical 
moment,  and  yet  their  general  success  is  wonderful. 

§  322.  When  the  average  of  cases  is  considered,  it  is 
found  that  each  party  approaches  the  trial  with  considera- 
ble knowledge  —  to  borrow  a  term  from  card-playing  —  of 
the  other's  hand.  There  will  be,  however,  a  portion  of 
each  side  unknown  or  not  rightly  understood,  and  many 
times  the  event  will  turn  on  the  nature  or  the  management 
of  these  unknown  particulars.  The  prominent  material 
points  will  hardly  ever  be  overlooked,  and  they  will  be 
rightly  attended  to ;  but  the  occurrences  which  cannot  be 
predicted,  such  as  the  miscarriage  of  an  important  witness, 
a  case  made  by  the  adversary  utterly  unanticipated  in  a 
cardinal  particular,  and  which  is  the  more  perplexing  be- 
cause a  different  one  has  been  prepared  against,  an  amaz- 
ing decision  by  the  court,  —  these  are  the  matters  which 
peculiarly  call  for  the  tact  of  the  efficient  nisi  prius  lawyer. 


224  CONDUCT   IN   COURT. 

The  faculty  now  in  contemplation  is  one  of  extemporaneous 
action,  and  it  ditFcrs  widely  from  that  of  a  leisurely  and 
wcll-prcmcditated  preparation.  The  part  played  by  this 
faculty  in  gaining  success  is  greatly  exaggerated.  Still  there 
is  a  considerable  proportion  of  cases  in  which  the  result  will 
nearly  always  be  determined  by  the  better  court  conduct. 
These  are  where  the  proofs  of  each  side  are  pretty  evenly 
balanced,  or  where  the  true  law  to  be  applied  is  doubtful, 
or  where  right  on  one  side  is  matched  with  prejudice  and 
a  strong  semblance  of  a  claim  on  the  other,  or  where  the 
facts  are  novel  and  the  true  solution  requires  more  thought 
and  time  tium  can  be  spared.  This  catalogue  is  not  com- 
plete, but  it  serves  to  indicate  sufficiently  the  general  char- 
acter of  the  litigation  which  specially  demands  all  of  the 
skill  of  the  trial  practitioner. 

§  323.  The  best  management  in  court  has  been  gen- 
erally preceded  by  a  particularly  painstaking  preparation. 
And  such  preparation  is  more  important  in  the  cases  last 
enumerated  than  in  all  others.  Argument  is  not  necessary 
to  prove  the  great  superiority  of  the  adversary  who  has 
acquired  beforehand  the  more  profound  and  accurate 
knowledge  of  the  case  to  be  tried.  By  reason  of  his 
better  knowledge  alone,  other  things  being  equal,  he  will 
often  discomfit  his  opponent.  Sometimes  one  will  be 
vanquished  where  he  is  the  stronger  because  he  has  not 
made  the  investigation  which  would  have  taught  him  his 
strength.  But  we  do  not  say  that  the  same  man  who  has 
well  done  the  precedent  labor  is  surely  the  best  man  to 
direct  the  trial.  The  associate  who  has  the  highest  degree 
of  the  extemporaneous  faculty  described  should  lead.  And 
he  should  have  thoroughly  in  his  head  and  by  heart  the 
preparation  of  the  case,  by  wdiomsoever  that  has   been 


INTRODUCTORY.  225 

made.  The  brief,  if  well  digested  and  exhaustive,  and  if 
it  is  conseicntiously  studied,  will  qualify  him  for  the  deli- 
cate task.  This  antecedent  preparation,  the  importance  of 
which  can  never  be  overrated,  as  we  are  now  about  to  use 
its  results,  it  is  well  to  analyze  again  in  order  to  have  it 
once  more  impressively  contemplated.  It  consists  in  the 
main  (1.)  of  a  most  industriously  gathered  and  complete 
collection  of  all  the  materials  of  your  own  side ;  (2.)  of 
such  a  collection,  as  far  as  has  been  possible,  of  those  of 
the  other  side ;  (3.)  of  a  proper  classification  of  all  these 
particulars  so  as  to  educe  the  issues  and  disclose  the  right 
modes  of  dealing  with  them  ;  (4.)  of  a  plan  of  conduct 
which  has  come  out  of  the  other  three,  —  a  plan  Avhich  is 
firmly  set  upon  incontrovertible  facts  and  law,  but  which 
turns  with  elastic  self-adjustability,  to  meet  every  unex- 
pected move  of  the  adversary. 

§  324.  The  subjects  of  the  two  Books  run  into  one 
another,  or  rather  the  demarcation  of  conduct  out  of  court 
from  conduct  in  court  is  mainly  made  for  the  purpose  of 
having  the  student  to  understand  the  whole  of  Conduct  of 
Litigation.  It  is  in  the  formation  and  the  execution  of  the 
plan  that  the  two  cohere  so  closely  that  one  is  but  the 
spontaneous  continuation  of  the  other.  But  the  one  is 
not  the  same  as  the  other.  Preparation  is  the  fulcrum  of 
attack  or  defence.  But  it  must  be  nothing  more.  The 
good  tactician  is  not  tied  to  his  preparation ;  which  with 
him  is  only  the  right  beginning,  —  the  planting  and  fixing 
of  the  fulcrum  immovably  if  he  can,  and  the  arraying  of 
his  columns  in  their  best  order,  —  but  which  others  in- 
ferior often  shoAv  by  their  acts  that  they  conceive  to  be  the 
end  of  their  work.  These  drudges  are  never  able  to  get 
beyond  the  brief,  which  they  treat  as  a  report  of  the  trial 

15 


226  CONDUCT   IN   COURT. 

made  bcforcliaiul.  Tlicy  will  make  out  the  case  only  pro 
forma. 

§  .32.J.  After  tlie  deal  the  game  is  to  be  played  ;  after 
tlie  dispositions  have  been  made,  the  battle  is  to  be  fought. 
To  fight  the  battle  of  a  case  well,  one  must  be  master  of 
the  case.  We  say  that  an  author  is  master  of  his  subject 
when  he  maintains  his  ground  against  all  opposers,  each,  it 
may  be,  attacking  in  a  new  and  unexpected  i^lace.  So  like- 
wise of  a  lawyer  who,  in  trying  his  case,  puts  in  the  whole 
of  his  own  material  evidence  and  clips  off  every  particle 
that  he  can  of  his  adversary's  which  would  damage,  who 
from  beginning  to  end  foregoes  no  advantage,  who  objects 
and  excepts  in  the  right  place  and  in  the  right  way,  and 
who  when  the  jury  retire  cannot  be  said  to  have  over- 
looked any  fair  opportunity  of  offence  and  protection,  we 
may  say  that  he  has  achieved  a  triumph ;  for  it  is  a 
triumph  even  if  the  adversary  wins.  In  one  of  his 
maxims  Napoleon  says :  "  A  general-in-chief  should  ask 
himself  frequently  in  the  day,  '  \yhat  should  I  do  if  the 
enemy's  army  appeared  now  in  my  front,  or  on  my  right, 
or  my  left  ? '  If  he  have  any  difficulty  in  answering  these 
questions,  his  position  is  bad,  and  he  should  seek  to  rem- 
edy it."  And  thus  the  intelligent  la^vyer  has  prepared 
for  trial.  He  has  not  anticipated  everything,  —  all  the  de- 
tails,—  for  that  is  impossille;  but  he  has  by  repeated  self- 
questionings  at  last  so  shaped  and  mobilized  his  case  that 
he  is  ready  for  any  turn  during  the  trial. 

§  326.  We  may  classify  the  leading  objects  of  conduct 
in  court  as  follows  :  — 

1.  Your  own  carefully  prepared  combinations  are  to  be 
placed  before  the  court  in  their  best  form. 

2.  You  are  to  see  t'lat  the  adversary  gets  no  advantage 
of  law  and  evidence  which  he  is  not  fairly  entitled  to. 


INTRODUCTORY.  227 

3.  You  are  to  use  efficiently,  as  the  trial  progresses, 
what  further  conibinations  you  may  be  able  to  make  ex 
tempore  out  of  materials  coming  to  hand. 

It  will  serve  to  give  a  clearer  idea  of  the  distinction 
between  the  nature  of  preparation  and  that  of  the  duties 
here  in  contemplation,  to  compare  the  work  of  the  English 
attorneys  and  juniors  of  which  the  brief  is  the  repository, 
and  what  the  leader  does  with  the  case  at  nisi  priiis.  The 
latter  will  concern  himself  with  the  preparation  in  order 
to  reject  useless  parts  and  rectify  mistakes  in  others  so  far 
as  he  can,  but  his  principal  business  will  be  to  encounter 
the  adversary  on  the  evidence  and  law,  striving  to  attain 
the  objects  mentioned  at  the  beginning  of  this  section. 

§  '3-27.  There  ouglit  to  be  a  consultation  just  before  the 
trial,  in  which  the  line  of  conduct  should  be  agreed  upon, 
and  who  is  to  lead  should  be  understood.  The  best  coun- 
sel for  each  particular  place  should  be  assigned  to  it. 
One  lawyer  will  examine  the  witnesses  better  than  his 
associates :  if  so,  the  post  should  be  given  him,  though  he 
is  not  the  leader.  Sometimes  an  important  legal  argu- 
ment at  some  point  of  the  proceedings  is  foreseen :  let  it 
be  settled  who  shall  make  it.  Nothing  is  more  irritating 
to  the  thorough  lawyer  than  to  see  several  counsel  con- 
ducting a  trial  in  no  concert  with  one  another,  where  no 
leadership  is  acknowledged  and  each  one  is  trying  to  show 
off  his  superiority  to  all  the  rest.  In  England  the  estab- 
lished usage  of  the  profession  settles  the  question  of 
leadei'ship.  Here  the  client  can  determine  it ;  but  it  is 
generally  decided  by  the  spontaneous  and  tacit  consent  of 
the  associates.  The  lawyer  set  up  to  lead  should  not  be 
over-anxious  to  exhibit  his  authority  and  superior  famil- 
iarity with  and  understanding  of  the  case. 


228  CONDUCT  IN  COURT. 

§  328.  At  this  consultation  the  witnesses  and  the  party 
slioukl  be  present  if  possible.  Every  important  detail  in 
the  brief  should  be  verified  if  true,  or  corrected  if  not. 
Especially  should  the  witnesses  be  attended  to.  As  they 
have  been  examined  and  re-examined  before,  they  can  soon 
be  disposed  of  now.  They  should  be  searchingly  probed 
on  all  material  points. 

The  legal  positions  ought  to  be  scanned  with  close  scru- 
tiny, and  the  pertinent  authorities  tested.  In  fact  the 
entire  case  must  be  contemplated.  There  often  occur 
changes  and  new  developments  to  the  very  last.  Let  all 
such  be  looked  at  calmly  and  boldly,  and  the  right  remedy 
be  found  and  applied. 

It  will  be  decided  whether  there  shall  be  contention  on 
the  merits,  or  whether  lighter  legal  force  shall  be  resorted 
to.  Often  a  well-taken  exception  will  relieve  you  when 
you  have  reason  to  desire  a  continuance,  but  you  have  no 
good  showing  for  it. 

As  we  have  said  above,  there  arc  many  simple  issues 
which  are  easily  come  at  and  which  do  not  require  cir- 
cumstance and  .parade.  They  will  almost  take  care  of 
themselves.  Laborious  examination  before  and  careful 
preparation  after  acceptance,  well-planned  conduct  and 
anxious  consultations,  are  for  those  of  intricacy  and  diffi- 
culty. While  on  the  subject  of  consultations  we  may  say 
that  the  associate  counsel  in  all  cases  which  need  them, 
ought  to  confer  with  one  another  at  every  good  opportu- 
nity during  the  trial. 

§  329.  We  will  now  say  something  of  selecting  the  juiy, 
a  topic  which  brings  us  to  the  subject  of  the  next  chapter. 
We  begin  by  giving  a  few  cases. 

A  young  man  was  charged  with  assault  with  intent  to 


INTRODUCTORY.  229 

murder.  The  prosecutor  had  been  the  tenant  of  his  father ; 
and  when  the  former  was  vacating,  the  son  discovered  that 
he  was  mahciously  defacing  the  walls  of  one  of  the  rooms. 
High  words  ensued,  and  then  a  fight.  The  prosecutor 
attacking  with  a  heavy  club  Avas  disabled  by  a  well-aimed 
pistol-shot.  All  of  the  eyewitnesses  were  related  to  the 
prosecutor,  and  their  testimony  was  expected  to  be  very 
hostile  to  the  defendant.  His  counsel  had  but  a  moment 
to  study  the  panel,  but  he  so  managed  his  challenges  that 
there  were  eleven  landlords  on  the  jury.  According  to 
the  theory  of  the  State  the  defendant  was  clearly  guilty  ; 
but  the  witnesses,  having  been  ordered  out  of  court,  con- 
tradicted one  another,  and  the  defacement  mentioned  was 
shown  by  his  admissions  to  have  been  the  act  of  the  tenant, 
although  he  had  denied  it  on  the  stand.  The  predominant 
class  upon  the  jury  turned  the  scale  in  this  doubtful  case, 
and  the  defendant  was  acquitted.  It  was  ascertained  after 
the  trial  that  the  sons  of  several  of  the  jury  had  had  quar- 
rels with  their  tenants  for  injuries  done  to  the  premises 
during  their  tenancies. 

§  330.  A  laAA'yer  had  spent  several  months  of  every  year 
until  after  he  had  been  called  to  the  bar  at  the  house  of 
a  relative,  who  lived  in  a  distant  part  of  the  county,  and  he 
had  thereby  made  many  acquaintances  among  the  neigh- 
bors. This  lawyer,  who  had  long  resided  elsewhere,  was 
suddenly  brought  to  this  county  to  defend  a  stranger  ac- 
cused of  nmrder  upon  what  seemed  to  be  convincing  proof. 
He  noted  that  those  who  lived  in  and  near  the  county  seat 
were  strongly  inclined  against  his  client,  while  those  be- 
yond were  neutral  in  opinion.  The  prosecution  were  not 
aware  of  the  facts  mentioned  at  the  beginning  of  this  sec- 
tion, and  this  gave  the  prisoner's  counsel  opportunity  to 


230  CONDUCT  IN  COURT. 

select  seven  of  his  old  playmates  for  jurors.  By  an  unex» 
pected  turn,  a  fact  never  disclosed  before  came  out  in  the 
State's  evidence  which  demonstrated  the  prisoner's  inno- 
cence. But  had  not  this  occurred,  the  prisoner  would  still 
have  had  much  advantage  of  the  State  because  of  the 
friends  of  his  counsel  on  the  jury. 

§  331.  I  once  observed  the  trial  of  an  action  for  libel 
against  four  defendants  who  had  lately  been  excluded  from 
the  Baptist  church  on  charges  connected  with  the  publica- 
tion complained  of.  A  large  majority  of  the  public  sym- 
pathized with  the  plaintiff,  who  had  a  strong  case.  But 
the  counsel  for  the  defendants  seemed  to  know  his  busi- 
ness, as  he  got  none  but  active  members  of  other  denomi- 
nations upon  the  jury,  trusting  that  they  would  try  to 
make  proselytes  of  his  clients.  The  verdict  was  for  the 
defendants,  and  it  could  not  be  set  aside. 

§  332.  The  last  instance  which  we  will  cite  is  one  of 
careful  preparation  beforehand.  A  father  and  son  were  in- 
dicted for  nmrder,  and  the  father  had  been  acquitted.  There 
was  so  much  public  feeling  against  the  son,  who  was  the 
actual  slayer,  that  his  counsel  was  very  apprehensive  that  his 
strong  defence  might  be  overborne.  iNIany  of  the  citizens 
of  the  county  had  become  disqualified  as  jurors  because  of 
having  heard  the  evidence  at  the  examination  and  at  the 
trial  of  the  father ;  and  the  counsel  had  good  reason  to  fear 
the  consequences  of  a  change  of  venue.  There  had  re- 
cently occurred  a  dissension  in  the  Baptist  church,  to  which 
the  father  belonged,  and  it  arose  out  of  an  affair  in  which 
he  was  personally  concerned.  A,  a  preacher,  had  stood  by 
the  father,  and  B,  another  preacher,  had  taken  the  other 
side.  Both  of  the  preachers  were  popular,  the  influence 
of  the  former  prevailing  in  one  part  of  the  county  and  that 


INTRODUCTORY.  231 

of  tlic  latter  in  the  opposite  part.  A  entertained  deep 
sympathy  for  the  defendants,  whom  he  honestly  believed 
to  be  justified  ;  but  he  made  no  public  demonstration.  He 
was  a  man  of  unobtrusive  manners,  but  of  such  transpar- 
ent purpose,  moderate  views,  and  deep  insight  that  his 
decided  convictions  were  quietly  adopted  by  all  who  had 
intercourse  with  him.  It  was  especially  fortunate  for  the 
defendant,  that  in  the  region  where  A's  influence  was  the 
greater  there  was  a  larger  number  of  persons  not  disquali- 
fied from  being  jurors.  Somehow  the  prosecution  over- 
looked the  dissension  mentioned,  and  did  not  see  that  it  had 
silently  and  unconsciously  even  to  the  members  passed  into 
a  division  as  to  the  case  of  the  defendant.  But  his  counsel 
detected  it.  He  went  through  the  names  of  all  the  citizens 
capable  of  jury  service,  marking  every  friend  of  the  rival 
preachers.  On  the  trial  many  panels  Avere  exhausted,  and 
eleven  jurors  had  been  selected.  Though  a  few  names  yet 
remained  on  the  list,  there  was  but  one  of  a  man  qualified, 
as  the  defendant's  counsel  knew,  and  had  the  prosecution 
been  aware  of  this  they  would  have  challenged  him  and 
effected  a  change  of  venue.  The  State  put  this  man  on 
the  prisoner.  He  was  of  the  following  of  B,  but  not  of 
inveterate  prejudice,  and  anyhow  he  had  to  be  accepted. 
The  defendant's  challenges  had  been  made  so  discreetly 
that  this  last-taken  juror  was  the  only  representative  of  his 
faction  on  the  jury,  while  several  others  of  good  standing 
were  devoted  friends  of  A.  The  contest  on  the  evidence 
and  in  the  argument  was  close  and  severe.  There  was  an 
acquittal,  and  I  always  thought  that  the  State  failed  be- 
cause the  leading  counsel  for  the  prosecution  —  a  resident 
of  the  county,  a  member  of  the  Baptist  church,  and  a 
follower  of  B  —  had  never  discovered  the  significance  for 


232  CONDUCT  IN  COURT. 

him  of  the  cliurch  agitation  in  which  lie  had  taken  a  prom- 
inent part. 

§  333.  The  foregoing  examples  have  opened  up  the  sub- 
ject. There  are  various  suggestions  of  your  proper  cue. 
Sometimes  you  need  men  of  great  intelligence  or  of  great 
ignorance,  or  of  great  firnmcss  or  the  opposite.  The  char- 
acter of  every  one  offered  —  whether  he  leans  to  mercy  or 
severity  or  has  other  defined  traits  —  must  often  be  consid- 
ered before  you  can  choose  or  reject  aright.  You  should 
keep  an  eye  to  religious  denominations,  political  parties, 
clubs,  Free  Masons,  Odd  Fellows,  and  other  societies,  the 
different  trades,  occupations,  and  professions ;  for  in  all 
these  one  member  is  generally  in  sympathy  with  another. 
The  common  prejudices  of  the  poor  and  debtor  class 
against  the  rich  and  creditors,  of  residents  in  the  country 
against  those  in  the  city,  of  the  people  generally  against 
corporations,  and  others  to  which  we  have  not  time  to 
allude,  must  be  held  in  mind,  to  be  used  or  avoided  as  is 
advised  by  your  side  of  the  case.  And  the  friends  of  your 
client  and  of  yourself,  —  his  and  your  enemies,  the  parti- 
sans of  the  adversary  and  the  claqueurs  of  his  counsel,  — 
the  former  are  good,  and  the  latter  bad  jurors  for  you. 
You  must  often  exhaust  the  city  directory  and  laboriously 
inquire  of  many  people  in  order  to  be  informed  fully. 

§  334.  No  honorable  member  of  the  profession  will  tol- 
erate canvassing  and  solicitations  among  those  from  whom 
the  jury  may  come,  or  any  effort  to  corrupt  them  after  they 
are  in  the  box.  But  you  are  to  learn  at  the  outset  of  your 
practice,  that,  if  you  neglect  the  study  of  your  panel  and 
the  selection  of  your  jurors  according  to  the  principles 
set  forth  above,  a  mistrial  or  an  adverse  verdict  will  often 
befall  you  when  you  ought  to  win. 


OPENING  THE  PLEADINGS  AND   THE   CASE.     233 


CHAPTER  VIII. 

OPENING  THE  PLEADINGS  AND  OPENING  THE  CASE. 

§  335.  The  case  not  having  been  continued  or  post- 
poned and  being  called  on,  the  jury  selected  and  sworn, 
the  plaintiff  —  the  few  cases  in  which  the  defendant  takes 
the  initiative  excepted  ^  —  is  to  open  the  pleadings  and  his 
case.  Our  practice  differs  from  the  English.  In  Eng- 
land the  junior  counsel  opens  the  pleadings,  and  then  the 
leader  states  in  detail  the  proofs  of  his  side,  which  state- 
ment is  called  the  opening  of  the  case.  The  plaintiff's 
evidence  is  then  put  in,  and  if  the  defendant  introduces  no 
evidence  the  counsel  of  the  former  will  not  be  heard  again. 
After  the  plaintiff's  evidence  is  finished  the  defendant's 
counsel  makes  the  defence.  If  he  has  no  evidence,  all 
that  ho  says  will  be  a  discussion  of  the  proofs  in  order  to 
show  if  he  can  that  they  do  not  entitle  the  plaintiff  to  re- 
cover. But  if  he  has  evidence,  besides  commenting  on 
that  of  the  other  party,  he  will  also  make  an  opening  of 
that  which  he  intends  to  introduce.  ^Yhen  his  evidence 
is  closed  the  leader  for  the  plaintiff  has  the  last  word  to  the 
jury,  called  the  reply. 

In  America  the  pleadings  and  the  case  are  usually  opened 
by  the  same  counsel,  and  the  argument  of  both  sides  is 

1  See  Proffatt,  Jury  Trial,  §§  212,  214,  215,  for  the  rule  which  settles 
wheu  the  defendant  shall  begin. 


234  CONDUCT  IN  couirr. 

made  to  tlic  jury  after  all  the  evidence  is  in.  And  it  is 
evident  that  a  discussion  of  the  evidence  made  before  it  is 
adduced  and  sifted  by  examination  is  premature. 

There  is  no  uniform  rule  settling  which  one  of  the  coun- 
sel shall  make  the  opening  for  either  the  plaintiff  or  the 
defendant.  I  have  noted  a  tendency  to  cede  it  to  the 
junior;  and  I  have  never  seen  one  counsel  open  the  plead- 
ings and  another  on  the  same  side  open  the  case. 

§  336.  We  will  set  out  by  giving  what  Mr.  Cox  says  in 
presenting  the  English  division  of  opening  the  pleadings 
and  opening  the  evidence.^ 

"The  junior  opews  the  pleadings;  that  is  to  say,  he 
states  to  the  jury  the  proceedings  through  which  the  issue 
or  issues  have  been  arrived  at  which  they  have  to  try.  This 
should  be  done  in  the  shortest  and  most  simple  manner. 
Nothing  can  be  more  absurd  than  to  hear,  as  one  often 
does,  a  long  string  of  technicalities  read  to  a  jury,  to  whom 
every  second  word  must  be  unintelligible  and  the  effect 
of  which  must  be  to  perplex  them  at  the  very  beginning 
of  their  task  and  thus  to  some  extent  prevent  them  from 
approaching  it  with  such  clear  intelligence  as  if  it  had 
been  introduced  to  them  in  plain  English.  .  .  . 

"  Make  your  statement  intelligible  to  the  jury  by  putting 
it  in  an  intelligible  shape  and  in  language  which  they  can 
understand.  As  thus  :  '  Gentlemen  of  the  Jury,  —  In  this 
case  John  Doe  is  the  plaintiff  and  Richard  Roc  is  the  de- 
fendant. The  action  is  brought  to  recover  the  sum  of  £21 
and  interest,  being  the  amount  of  a  bill  of  exchange  drawn 

1  The  first  volume  of  Mr.  Cox's  Advocate  appeared  in  1852.  It  never 
reached  a  second  edition,  and  he  never  published  his  contemplated  second 
volume.  As  the  book  is  scarce,  we  shall  quote  largely  in  this  and  succeed- 
ing chapters  from  parts  of  it  which  have  long  seemed  to  us  very  valuable. 


OPENING  THE   PLEADINGS  AND   THE   CASE.     235 

by  the  plaintiff  upon,  and  accepted  by,  the  defendant.  In 
answer  to  this  chiiiu  the  defendant  has  pleaded,  l!-t,  that 
he  did  not  accept  the  bill ;  2d,  that  he  has  paid  it ;  3d, 
that  it  was  obtained  by  fraud ;  4th,  that  no  consideration 
was  given  for  it.  Upon  these  j^leas  issue  has  been  joined, 
and  these  are  the  questions  you  have  to  try.' 

§  337.  "  But  it  will  be  said,  perhaps,  that  however  prac- 
ticable this  may  be  w4th  so  simple  a  case  as  an  action  on 
a  bill  of  exchange,  it  could  not  be  done  where  the  plead- 
ings are  more  technical,  as  in  an  action  of  trespass  quare 
clausum  /regit,  for  instance.  This,  however,  will  not  be 
found  incapable  of  interpretation  into  intelligible  Eng- 
lish. .  .  .  Let  us  make  the  attempt :  '  Gentlemen  of  the 
Jury,  —  In  this  case  John  Doe  is  the  plaintiff  and  Richard 
Roe  is  the  defendant.  The  action  is  brought  to  recover 
damages  for  a  trespass  by  the  defendant  upon  certain 
premises  of  the  plaintiff,  in  Ide,  in  the  county  of  Devon. 
The  defendant  has  pleaded,  first,  that  he  is  not  guilty  of 
the  said  trespass ;  second,  that  he  entered  the  premises  in 
question  by  the  leave  and  license  of  one  James  Brown, 
who  was  the  tenant  in  possession  of  the  said  premises. 
To  the  second  plea  the  plaintiff  has  replied  that  the  said 
James  Brown  was  not  in  lawful  possession  of  the  premises, 
nor  entitled  to  give  such  leave  and  license  ;  and  these  are 
the  questions  you  have  to  try.' 

"  A  statement  somewhat  in  this  form  might  be  made 
with  equal  ease,  however  various,  complicated,  or  techni- 
cal the  pleadings,  and  indeed  some  such  sketch  must  have 
been  drawn  in  the  pleader's  mind  or  set  down  upon  his 
notes  before  he  put  it  into  technical  form."  ^ 

§  338.    Mr.  Cox  next  treats  the  opening  of  the  case  :  — 

1  Advocate,  335-338. 


236  CONDUCT  IN  COURT. 

"  The  pleadings  opened  by  the  junior,  the  leader  proceeds 
to  open  the  case  to  the  jury  ;  and  should  you  chance  to 
fill  this  honorable  post,  you  may  glean  some  hints  for  your 
task  from  the  following  remarks. 

"  As  a  general  rule,  the  statement  of  the  case  for  the 
plaintiff  should  be  calm,  temperate,  and  dignitied,  orderly 
in  arrangement,  lucid  in  language,  and  as  brief  as  the  facts 
to  be  told  will  permit.  .  .  .  You  cannot  more  effectually 
awaken  in  the  court  and  the  jury  a  sympathy  for  your 
wronged  client  and  indignation  against  the  wrong-doer, 
than  by  a  simple  description  of  the  injury  and  a  careful 
abstinence  from  angry  comments,  personal  abuse,  and  other 
indications  that  revenge  rather  than  redress  is  the  object 
of  the  plaintiff.  .  .  . 

§  339.  "  You  will  begin,  of  course,  with  an  account  of 
the  parties,  who  and  what  they  are,  and  the  circumstances 
that  led  to  the  present  dispute ;  then  you  will  state  with 
precision  the  nature  of  the  dispute  itself,  and  whether  it  is 
upon  a  question  of  law  or  of  fact,  or  both,  witli  tlie  very 
points  at  issue  ;  the  one  for  the  information  of  the  court, 
and  the  other  for  the  information  of  the  jury,  that  atten- 
tion may  be  directed  more  readily  and  surely  to  your  evi- 
dence as  it  bears  upon  these  points.  Of  so  much  impor- 
tance is  this  that  you  should  take  some  pains  by  previous 
preparation  to  put  tliem  into  the  most  distinct  shape,  and 
you  should  repeat  each  one  totidem  verbis  whenever  you 
introduce  your  statement  and  when  you  close  the  evidence 
that  bears  upon  it.  Then,  taking  each  of  these  questions 
in  turn,  state  in  the  form  of  a  narrative  the  proofs  you  pro- 
pose to  produce  in  order  to  its  establishment,  and  in  so 
doing  be  very  careful  to  show  no  misgiving  about  it  by 
anticipating  objections,  apologizing  for  defects,  or  making 


OPENING    THE   PLEADINGS   AND   THE   CASE.     237 

an  effort  to  give  weiglit  to  certain  witnesses,  for  you  must 
assume  that  they  are  uninipeacliable  until  they  arc  sliakcn 
by  your  opponents,  and  their  testimony  to  be  conclusive 
until  it  is  shown  to  be  otherwise.  .  .  .  You  should  resci've 
your  energies  and  your  eloquence  for  the  reply. 

§  340.  "  Strange  as  it  may  aj^pear,  there  is  nothing  more 
difficult  in  the  art  of  advocacy  than  effectively  to  open  a 
case  to  a  jury.  The  proof  of  this  is  the  rarity  of  the  ex- 
hibition. How  few  of  our  advocates  accomplish  it  to  the 
entire  satisfaction  of  a  critical  listener  !  How  few  possess 
the  faculty  of  marshalling  facts  in  their  natural  order,  and 
taking  up  and  so  interweaving  distinct  threads  of  a  story 
as  to  form  a  clear,  continuous,  intelligible  narrative."  ^ 

§  341.  The  same  author  thus  advises  the  counsel  who 
is  to  open  the  plaintiff 's  case  :  — 

"  It  is  your  object  to  convey  to  them  [the  jury]  and  to 
the  court  a  history  of  the  case,  so  that  they  may  tlioroughly 
understand  what  is  the  subject  matter  of  the  contention, 
upon  what  grounds  of  claim  or  complaint  you  come  into 
court,  and  the  evidence  by  which  you  purpose  to  establish 
them.  .  .  .  You  will  commence  of  course  with  a  descrip- 
tion of  the  parties,  who  and  what  they  are,  with  the  addi- 
tion of  any  circumstances  in  the  position  of  either  of  them 
which  may  affect  the  case  by  explaining  subsequent  trans- 
actions or  aggravating  the  damages.  If  locality  is  any  way 
concerned  describe  the  locus  in  quo,  and,  if  it  be  possible 
to  procure  it,  in  all  cases  use  a  map  for  this  purpose.  The 
rudest  dra^ving  of  a  place  is  more  intelligible  than  any 
verbal  description,  and  it  has  the  still  more  important  use 
of  at  once  arousing  and  fixing  upon  the  story  the  attention 
of  the  jury.  .  .  . 

1  Advocate,  335-341. 


238  CONDUCT  IN  COUKT. 

"  Having  described  the  persons  and  the  place,  take  up 
your  narrative  at  sucli  period  preceding  the  ininiediate 
matter  of  controversy  as  may  be  necessary  to  exphiin  the 
causes  of  it,  —  to  use  a  legal  i)hrase,  begin  with  the  induce- 
ment. Show  how  it  was  that  the  conflict  arose.  Then 
describe  minutely,  with  careful  reference  to  the  plan,  if 
there  be  one,  the  subject  matter  of  the  dispute  and  the 
precise  questions  which  the  jury  will  have  to  determine  in 
relation  to  it.  This  done,  you  will  proceed  to  state  your 
case,  the  facts  and  arguments  upon  which  you  rest  your 
claim  to  the  verdict.  .  .  . 

§  342.  "  Perhaps  the  test  whether  you  have  done  all 
that  you  should  do  previously  to  describing  your  testimony 
may  be  thus  put :  Have  you  made  out  such  a  case  by 
your  facts  and  arguments  that,  if  you  prove  those  facts  and 
they  be  unanswered,  the  jury  would  be  convinced  that 
your  claim  or  complaint  was  justly  founded  and  would 
give  you  their  verdict  ? 

"  This  accomplished,  and  not  before,  you  should  proceed 
to  state  the  particular  evidence  by  which  you  propose  to 
establish  the  facts  you  have  detailed.  .  .  . 

§  343.  "  Nothing  is  gained,  but  on  the  contrary  a  great 
deal  is  lost,  by  stating  to  the  jury  anything  you  cannot 
2)rove.  They  are  not  convinced  by  your  speech,  but  by  the 
evidence  by  which  you  substantiate  your  statement.  You 
cannot  hope  to  achieve  more  with  the  most  impressible 
juryman  than  to  bring  him  to  this :  '  Well,  if  you  prove 
ivhat  you  say,  you  will  have  my  verdict.'  "  ' 

§  344.  Mr.  Cox  considers  how  doubtful  or  adverse 
witnesses  shall  be  treated,  —  advising  that  the  former  be 
opened  as  such,  and  that  as  to  the  latter  you  "  point  out 

1  Advocate,  3i2-347. 


OPENING   THE   PLEADINGS   AND   THE   CASE.     239 

in  the  strongest  colors  the  interests  tliat  operate  upon 
them,  as  likely  to  warp  their  testimony,  not  only  for  the 
purpose  of  warning  the  jury  against  placing  confidence  in 
any  evidence  injurious  to  you  which  they  may  give,  but 
also  to  make  doubly  influential  whatever  they  may  say 
in  your  favor."  ^ 

§  345.  Our  author  says  at  the  last :  "  In  concluding 
your  opening  it  is  rarely  prudent  to  do  more  than  briefly 
to  repeat  [to  the  jury]  the  outline  of  your  case,  and  espe- 
cially so  much  of  it  as  goes  to  aggravate  damages,  winding 
up  by  a  calm  assertion  of  your  confidence  that,  if  you  estab- 
lish the  case  you  have  stated,  you  will  be  entitled  to  their 
verdict.  Anything  in  the  shape  of  a  formal  peroration, 
and  especially  any  display  of  eloquence  at  the  close  of  an 
opening,  is  out  of  place  and  in  bad  taste,  and  only  permis- 
sible in  a  few  exceptional  cases,  of  which  it  must  be  left  to 
your  discretion  at  the  moment  to  determine."  ^ 

§  346.  Having  given  so  much  space  to  Mr.  Cox,  we 
must  allude  to  Mr.  Harris.  The  leading  points  emphasized 
by  him  are  as  follows.  The  opener  is  to  manifest  by  his 
manner  his  foith  in  his  cause  ;  he  is  to  refrain  from  constantly 
anticipating  the  other  side ;  he  is  not  to  say  such  things  as 
"  I  cannot  conceive  what  defence  my  learned  friend  can 
have,"  or,  "  It 's  really,  gentlemen,  an  undefended  case,"  — 
such  remarks,  as  the  author  has  observed,  being  very  often 
followed  with  a  "  verdict  for  the  learned  friend  who  has 
no  case  or  no  defence  "  ;  "  the  principal  thing  in  an  open- 
ing speech  is  arrangement  and  order'';  irrelevant  matter 
is  to  be  excluded ;  the  statement  of  the  issue  and  the  con- 
trolling evidence  is  to  be  clear ;  time  is  not  to  be  wasted 
on  undisputed  matters ;  moderation  is  more  forcible  than 

1  Advocate,  318,  319,  2  jbid.,  319,  350. 


240  CONDUCT  IN   COURT. 

exaggeration ;  no  material  point  is  to  be  omitted ;  the 
speaker  is  not  to  be  too  rapid ;  and  tliat  "  Slow,  sure,  and 
short,  is  a  good  motto  for  young  advocates."  ^ 

§  347.  The  rule  in  England,  that,  if  the  defendant  has 
no  evidence,  the  plaintiff's  counsel  will  not  be  heard  again, 
renders  the  opening  far  more  important  there  than  it  is 
here  ;  for  peradventure  it  may  be  the  only  opportunity  of 
the  latter  to  comment  on  the  evidence.  With  us  the 
plaintiff's  counsel  can  always  make  an  argument  after  tlie 
defendant's  counsel  has  decided  to  introduce  no  evidence, 
although  the  latter  will  in  that  case  have  the  last  word. 
In  England,  argument  and  appeal  may  often  with  propriety 
enter  into  the  opening,  while  here  they  would  be  out  of 
keeping.  Our  juries  only  expect  a  long  speech  after  the 
evidence  is  closed.  And  the  strengthening  tendency  to 
reserve  all  discussion  and  explanation  for  the  argument 
proper  has  unduly  lowered  the  common  opinion  of  the 
purposes  of  an  opening.  Time  and  again  do  I  hear  the 
counsel  for  the  plaintiff,  after  reading  rapidly,  and  seeming 
not  to  care  whether  he  is  understood  or  not,  the  substan- 
tial parts  of  the  pleadings,  only  add  that  he  expects  to 
support  the  allegations  of  the  declaration  by  evidence, 
which  he  will  not  now  take  up  their  time  to  narrate. 
Both  the  court  and  the  jury  need  a  guide  to  the  issues 
and  the  expected  proof.  You  often  note  that  the  latter 
rouse  up  to  learn  the  facts  from  the  speeches.  To  the 
honor  of  our  institutions  of  self-government  and  our  gen- 
eral education,  our  juries  are  in  the  main  intelligent, 
honest,  and  very  desirous  to  find  and  do  the  right  between 
contending  parties.  How  can  they  fitly  perform  this  high 
duty  unless  all  the  preliminary  instruction  w  hich  they  need 

1  Hints  on  Advocacy,  6tli  English  ed.,  Chap.  I. 


OPENING  TUE  PLEADINGS   AND  THE  CASE.     241 

is  furnished  them?  How  can  they  understandingly  go 
ah)iig  witli  the  shiftings  of  a  voluminous  evidence,  often 
paralleling  the  play  of  a  turning  kaleidoscope,  without 
some  general  notion  given  them  beforehand  both  of  this 
evidence  and  the  issues.  Even  veteran  judges  are  fre- 
quently found  not  to  have  detected  the  real  question  until 
they  hear  nuich  of  the  argument.  If  they  who  are  trained 
to  listen  and  whose  apprehensions  have  been  artificially 
quickened  are  the  better  for  a  prefatory  outline,  much 
more  do  the  laity  in  the  jury-box  require  a  patient  and 
careful  unfolding  of  the  general  features  of  the  case  at  the 
beginning  of  the  trial.  In  quoting  extensively  from  Mr. 
Cox,  and  by  summarizing  the  views  of  ]\Ir.  Harris,  we 
essay  a  correction  of  the  fiiult  mentioned  above  as  too 
common  in  America.  We  hope  that  a  contemplation  by 
the  young  la^v^er  of  the  importance  attached  to  the  open- 
ing in  England  —  an  importance  which,  as  we  have 
pointed  out,  it  does  not  have  here  —  would  Serve  to 
counteract  its  undue  depreciation  in  our  country.  And 
this  explanation  being  made,  we  will  now  proceed  to  dis- 
cuss the  essentials  of  a  proper  opening  in  our  courts. 

§  348.  The  pleadings  are  opened  in  order  to  suggest 
what  are  the  issues.  I  have  noted  that  often  the  plain- 
tiff's counsel  leaves  it  to  the  adversary  to  open  the  pleas. 
But  the  cross-examination  is  frequently  directed  to  elicit 
facts  favorable  to  the  pica,  and  then  there  is  a  re-examina- 
tion considering  these  facts  again.  Such  a  cross-examina- 
tion and  re-examination  are  only  rightly  prepared  for  by  an 
opening  of  the  pleas  as  well  as  the  declaration.  So  it 
must  be  insisted  that,  after  you  tell  the  jury  the  claim  of 
the  plaintiff,  you  also  state  the  allegations  of  the  defend- 
ant denying  or  avoiding  the  claim.     What  we  have  quoted 

16 


242  CONDUCT  IN  COURT. 

from  Mr.  Cox  in  reference  to  the  treatment  of  the  plead- 
ings leaves  us  but  little  to  say  upon  the  subject. 

§  349.  If  they  arc  voluminous  and  intricate  they  should 
always  be  read,  tliough  there  be  an  offer  to  waive  the 
reading.  But  a  lucid  synopsis  of  them  should  first  be 
made  orally.  No  long  document  should  ever  be  read 
without  a  clear  though  ever  so  brief  statement  of  the 
points  which  it  is  expected  to  support.  We  are  talkers 
by  nature  and  readers  by  art.  The  judge  and  jury  both 
prefer  being  talked  to  rather  than  being  read  to.  After 
the  oral  statement  recommended  when  the  pleadings  are 
read,  the  jury  will  understand  even  the  technical  terms, 
the  judge  will  easily  discern  the  questions  of  law,  and  both 
will  receive  a  complete  and  vivid  presentation  of  the  issues 
made  by  the  record. 

§  350.  When  the  rule  of  law  which  you  assume  is  novel 
or  may  appear  to  be  repugnant  to  the  current  of  decisions 
or  the  afecepted  construction  of  a  pertinent  statute  or  sec- 
tion of  the  code,  it  is  well  to  be  fuller  to  the  judge  tlian  is 
ordinarily  required.  As  soon  as  you  have  proceeded  far 
enough  with  the  record  to  make  it  appear  that  the  rule  as 
you  assert  it  to  be  is  material,  you  should  indicate  the 
authorities  and  reasons  wliich  you  wall  handle  in  extenso 
in  the  argument.  I  have  observed  that,  if  the  judge  in  the 
outset  takes  position  against  you  on  the  law,  he  will  often 
not  attend  as  closely  to  the  other  particulars  of  your  case 
as  you  would  have  him.  You  should  always  try  to  win 
the  leaning  of  the  judge  at  the  earliest  possible  moment 
in  the  trial. 

§  351.  We  must  now  consider  the  treatment  of  the 
proofs.  Mr.  Harris's  analysis  of  Sir  Alexander  Cockburn's 
opening  speech  in  the  trial  of  Palmer,  charged  with  poi- 


OPENING   THE   PLEADINGS   AND   THE   CASE.     243 

soning  Cook,  is  an  instructive  chapter  to  the  young  lawyer.^ 
The  prosecution  had  to  build  on  many  subtle  circumstances. 
It  was  a  complication  that,  while  Cook  had  been  prepared 
by  antimony,  he  was  killed  by  strychnine,  and  this  necessi- 
tated careful  explanation  of  the  diverse  operations  of  the 
two  substances  and  much  scientific  detail  in  educating  the 
jury  for  the  peculiar  proofs.  The  speech,  for  all  of  its 
length,  is  in  the  main  a  genuine  opening.  It  is  made  up 
of  what  we  may  call  an  introductory  historical  outline,  a 
painstaking  development  of  the  turning  questions  of  fact, 
and  a  narrative  in  little  of  the  evidence.  The  case  was 
one  ^^'hich  in  an  American  court  would  have  demanded  a 
far  more  detailed  opening  than  usual ;  and  it  deserves 
study  in  order  to  fit  the  lawyer  for  such  exceptional  in- 
stances. But  we  are  chiefly  concerned  to  note  what  is 
proper  in  commonly  occurring  cases. 

§  352.  The  exact  issues  having  been  shown  by  giving 
the  substance  of  the  pleadings,  the  first  thing  to  do  with 
the  facts  is  to  give  the  propositions  of  each  side.  These 
are  what  Sir  James  Stephen  calls  the  facts  in  issue  as  dis- 
tinguished from  relevant  facts,  the  latter  meaning  the 
proofs  of  the  former.  Your  own  propositions  should  be 
arranged  in  the  true  natural  order ;  and  as  a  particular 
one  is  finished,  the  counter  proposition  of  the  adversary 
should  be  given.  After  this  statement  is  finished  it  is  in 
order  for  you  to  sketch,  in  as  brief  an  outline  as  is  easily 
intelligible,  the  e^^dence  which  you  propose  to  ofi'er  in 
support  of  your  prima  facie  case.  It  would  be  an  impro- 
priety to  anticipate  the  adverse  evidence  and  tell  what  will 
be  yours  in  rebuttal ;  for  the  defendant  can  always  decline 
to  put  in  CAidence,  and  Avhether  he  w^ill  do  this  and  what 

1  Hints  on  Advocac}-,  6tli  ed.,  265-294. 


244  CONDUCT  IN  COURT. 

range  his  proofs  will  take  are  secrets  of  his  own.  Remem- 
ber that,  even  if  the  defendant  has  no  evidence,  you  will 
have  opportunity  to  comment  upon  the  facts  drawn  out 
by  his  cross-examination  and  his  positions  when  you  make 
your  argument. 

§  353.  When  Scarlett  had  reason  to  expect  no  evidence 
fi*om  the  defendant  he  made  a  fuller  opening  than  usual. 
But  he  ordinarily  employed  the  conciseness  which  we  rec- 
ommend.    He  sjiys  :  — 

"  It  was  my  habit  ...  to  state,  in  the  simplest  form 
that  the  truth  and  the  case  would  admit,  the  proposition 
of  which  I  maintained  the  affirmative  and  the  defendant's 
counsel  the  negative,  and  then,  without  reasoning  upon 
them,  the  leading  facts  in  support  of  my  assertion.  Thus 
it  has  often  happened  to  me  to  open  in  five  minutes  a 
cause  which  would  have  occupied  a  speaker  at  the  bar  of 
the  present  day  from  half  an  hour  to  three  quarters  of  an 
hour  or  more."  ^ 

In  most  cases  the  jury  can  be  put  in  condition  for  in- 
telligently following  your  proofs  by  a  very  short  introduc- 
tion, provided  it  plainly  unfolds  the  grounds  occupied  by 
both  parties  and  also  gives  a  lucid  narrative  of  your  "  lead- 
ing facts."  It  is  well  to  hint  the  favorable  character  of 
important  witnesses,  and  especially  should  you  prepare  the 
jury  for  those  adverse  to  you  in  interest  or  feeling  whom 
you  must  call.  And  as  .  practice  sharpens  your  insight 
you  will  learn  what  other  topics  nmst  now  and  then  be 
suggested  in  an  opening. 

§  354.  It  is  customary  in  America  for  the  defendant  to 
open  his  evidence.  The  pleadings  have  already  been  dis- 
posed of,  and  you  have  nothing  to  do  with  them  except  it 

1  See  the  fuller  citation,  American  Law  Studies,  §  1082. 


OPENING  THE   PLEADINGS   AND   THE   CASE.     245 

may  be  to  set  the  plaintiff's  counsel  right  in  some  misstate- 
ment. You  are  not  expected  at  this  stage  to  comment  on 
the  evitlence  of  tlie  adveraary.  Your  business  is  to  suggest 
that  which  you  expect  to  produce.  The  ojDening  of  the 
plaintiff,  his  direct  and  your  cross  examination,  have  dis- 
closed much  of  your  case,  and  there  is  therefore  more 
reason  for  conciseness  in  yours  than  in  the  opening  of  the 
plaintiff.  As  to  most  other  matters,  what  we  have  shown 
to  be  essentials  in  the  latter  may  be  repeated  liere.^ 

§  355.  The  last  thing  which  we  have  to  say  on  the  sub- 
ject of  opening  the  facts  is  that  it  should  be  subsequently 
aided  by  a  progressive  development  of  your  evidence. 
The  late  Mr.  B.  H.  Hill,  of  Georgia,  kept  his  witnesses 
well  in  hand  by  proper  questions  and  a  restraint  from  ex- 
cursion almost  imperceptible,  and  he  observed  due  order 
so  closely  through  his  examination  that  the  jury  had  as 
little  need  for  an  opening  as  the  spectators  have  for  a  pro- 
logue to  a  well-managed  pantomime. 

§  356.  The  principle  of  an  opening  is  fully  stated  by 
the  great  Roman  institutional  writer  in  a  short  sentence. 
He  says  :  — 

"When  the  parties  came  before  the  judex  they  used 
to  preface  the  argument  by  setting  forth  the  case  to  him 
concisely  and  in  an  abridgment ;  which  was  called  causae 
conjectio,  that  is,  a  compression  of  the  case  into  a  brief 
outline."  ^ 

Our  lawyers  of  to-day  can  find  in  this  the  soul  of  the 

'  The  reader  may  compare  Cox,  Advocate,  442-448;  and  the  chapter 
entitled  "As  to  Opening  the  Defendant's  Case,"  Harris,  Hints,  6th  ed., 
161-170,  where  the  subject  is  more  widely  distinguished  from  the  opening 
of  the  plaintiff  than  is  necessary  in  America. 

^  "Cum  ad  judicem  venerant,  antequam  apud  eum  causam  perorarent, 
solehant  breviter  ei  et  quasi  per  indicera  rem  exponere  :  quae  dicebatur 
causae  conjectio,  quasi  causae  siiae  in  breve  coactio."  —  Gai.  4.  15. 


246  CONDUCT   IN   COURT. 

subject,  —  a  summary  of  all  that  wc  have  said.  The  real 
use  of  the  opening  is  to  prepare  for  hearing  witnesses  and 
doeuments,  no  one  of  which  tells  the  whole  story  of  the 
case,  and  to  suggest  the  issues  which  would  otherwise 
have  to  be  found  by  a  generalization  too  burdensome  for 
common  judges  and  jurors. 


CONDUCT  OF  THE  EVIDENCE.  247 


CHAPTER  IX. 

BEGINNING     OF     CONDUCT     OF     THE     EVIDENCE. THE 

EXAMINATION   OF   THE    PARTY's   WITNESSES. 

§  357.  At  the  first  we  make  a  short  sketch  of  the 
course  of  evidence  in  a  trial,  and  the  general  principles  of 
its  conduct,  and  after  this  we  devote  the  remainder  of  the 
chapter  to  the  examination  of  one's  own  witnesses. 

We  start  with  the  familiar  rule  that  the  party  who  holds 
the  affirmative  of  the  issue  begins  the  evidence.  He  is 
only  to  make  out  a  prima  facie  case,  —  a  subject  to  be 
treated  more  fully  hereinafter,  —  and  he  can  usually  re- 
serve much  of  his  testimony  to  reply  to  tliat  of  the  adver- 
sary. The  plaintiff  having  rested,  if  the  defendant  does 
not  make  a  motion  for  a  nonsuit  and  prevail,  and  if  he 
does  not  choose  to  stand  on  the  case  already  made,  he 
puts  in  such  evidence  as  he  has  to  avoid  the  effect  of  his 
adversary's ;  when  he  rests.  The  plaintiff  can  then  sup- 
port his  own  proof  where  it  has  been  attacked,  and  also 
attack  the  attacking  evidence  by  other  evidence.  He  can 
now  prove  no  additional  facts  in  issue ;  h.e  can  only  fend 
off  the  aggression  of  the  other  side  or  contradict  its  testi- 
mony. AMien  the  plaintiff  has  re-established  his  case  he 
^^^ll  pause  again.  The  defendant  can  in  turn  re-enforce 
his  impugned  evidence  and  disprove  the  testimony  last 
introduced  by  the  plaintiff.     And  so  the  parties  may  go  on 


248  CONDUCT  IN   COURT. 

iuul  ruu  a  parallel  to  the  old  course  of  pleading,  to  wit, 
declaration,  plea,  replication,  rejoinder,  surrejoinder,  re- 
butter, and  surrebutter.  The  plaintiff's  first  evidence  cor- 
responds to  the  declaration  ;  the  defendant's  first,  to  the 
plea  ;  the  plaintiff's  second,  to  the  replication  ;  the  defend- 
ant's second,  to  the  rejoinder;  the  plaintiff's  third,  to  the 
surrejoinder;  the  defendant's  third,  to  the  rebutter;  and 
the  plaintiff's  fourth,  to  the  surrebutter.  A  standard  au- 
thor says  :  "  After  the  surrebutter  the  pleadings  have  no 
distinctive  names ;  for  beyond  that  stage  they  are  very 
seldom  found  to  extend."  ^ 

The  evidence  may  be  documentary  as  well  as  oral. 
Sometimes  it  will  be  all  documentary,  thougii  this  will 
occur  but  seldom. 

§  358.  We  now  take  up  the  examination  of  witnesses. 
And  while  we  here  quote  a  passage  in  reference  to  those 
of  the  plaintiff,  we  remind  the  reader  that  our  subject  in 
this  chapter  is  the  direct  examination  of  the  witnesses  on 
both  sides.     INIr.  Cox  says  :  — 

''The  plaintiff's  case  being  stated  by  the  leader,  the 
examination  of  the  plaintiff's  witnesses  proceeds.  The 
general  rule  is  for  the  counsel  on  that  side  to  conduct  the 
examination  of  the  witnesses  in  turn,  the  junior  taking 
the  first  witness,  probably  because  it  was  supposed  that 
the  leader  would  require  rest  after  his  speech.  But  this 
order  is  somewhat  departed  from  under  special  circum- 
stances, as  where  the  witness  is  peculiarly  important  or 
his  examination  demands  peculiar  skill,  in  which  case  the 
leader  will  propose  to  take  him ;  —  a  suggestion  to  which 
you  should  always  readily  and  cheerfully  assent;  and  indeed 
when  such  a  ^vitness  chances  to  fall  to  your  lot  it  would 

1  Steph.  PL  59. 


EXAMINATION   OF   THE   PARTY'S  WITNESSES.     249 

be  becoming  in  you  to  propose  to  your  leader  that  lie 
should  call  him,  and  thus  to  anticipate  the  delicacy  that 
often  prevents  a  leader  from  doing  that  which  may  look 
like  a  want  of  confidence  in  you."  ^ 

§  359.  The  author  is  not  aware  of  any  American  rule 
which  settles  what  counsel  shall  examine.  This  is  one  of 
the  discretionary  matters  which  is  generally  disposed  of  by 
agreement  at  the  consultation  before  the  trial.  If  there 
has  been  no  such  agreement,  tlie  counsel  whose  leadership 
is  conceded  either  examines  or  directs  an  associate  to  per- 
form the  duty.  Other  things  being  equal,  that  counsel 
should  examine  who  is  best  acquainted  with  the  expected 
proof,  if  it  be  at  all  difficult  to  elicit.  Generally  different 
parts  of  the  case  have  been  got  up  by  different  counsel, 
and  possibly  but  one  of  them  has  had  an  interview  with  a 
particular  witness.  It  is  plain  that  this  counsel,  if  he  has 
the  ordinary  qualifications,  should  examine  the  witness 
whose  narrative  he  knows. 

And  the  author  has  noted  that  where  the  facts  are  many 
and  intricate  and  the  case  so  doubtful  as  to  require  elabo- 
rate discussion,  it  is  better  for  the  counsel  who  is  to  make 
the  main  argument  not  to  examine  any  of  the  witnesses. 
He  will  then  be  free  to  take  careful  notes,  and  at  every 
pause  he  can  be  casting  the  balance  of  the  testimony  in- 
stead of  puzzling  in  anticipation  over  the  next  witness,  or 
the  cross  or  the  re-examination.  And  while  thus  playing 
the  part  of  auditor  he  can  be  of  great  assistance  to  his 
associate  examining,  to  whom  he  will  only  make  sugges- 
tions of  important  questions  which  would  otherwise  be 
omitted. 

§  360.    It  being  decided  what  counsel  shall  act,  and  the 

^  Advocate,  351. 


250  CONDUCT  IN  COURT. 

witness  being  on  the  stand,  the  examination  of  the  latter 
begins.  The  pleadings  of  the  plaintitt*,  liis  declaration,  or 
his  bill  in  equity,  or  the  bill  of  indictment,  contain  certain 
propositions  of  fact  wliich  must  be  proved,  and  the  pur- 
pose of  the  direct  examination  of  the  plaintiff's  or  the 
State's  witnesses  is  to  prove  them,  as  it  is  tiie  purpose  of 
the  defendant's  direct  examination  to  prove  the  material 
propositions  of  fact  in  his  plea  or  answer.  We  take  for 
granted  that  our  examiner  is  lawyer  enough  to  distinguish 
what  is  good  evidence  and  what  is  not.  Knowing  the  ex- 
pected narrative  of  the  witness  either  from  having  talked 
with  him  or  from  having  digested  full  instructions  of  a 
reliable  associate,  he  will  so  shape  his  questions  as  to 
elicit  the  material  parts.  He  is  to  draw  out  every  bit  of 
that  wliich  is  favorable  to  his  client,  and  nothing  unfavor- 
able or  as  little  as  possible.  But  if  there  is  something 
adverse  apparent  on  the  surface,  the  examiner  in  chief  had 
better  draw  it  out  himself.  Thus  the  witness  may  be  a 
near  relative  of  the  party,  or  a  warm  friend,  or  jointly  in- 
terested witli  your  client,  and  these  focts  may  be  as  well 
known  to  the  adversary  as  to  yourself.  It  is  idle  to  try  to 
suppress  them  ;  and  the  one  calling  the  witness  will  gain 
credit  if  he  proves  them,  while  it  might  be  used  to  his  dis- 
advantage if  he  does  not. 

§  361.  But  we  must  not  go  too  fast.  It  seems,  better 
to  give  an  outline  of  what  the  counsel  should  do  in  com- 
mon cases.  Your  ordinary  witness  is  self-possessed  if  you 
do  not  snub  or  chill  him,  is  honest,  and  not  at  all  stupid  if 
your  questions  are  put  in  every-day  language.  Our  first 
business  is  with  him,  and  when  that  is  finished  we  shall 
deal  with  the  exceptional  classes.  We  premise  that  you 
have  made  a  proper  arrangement  of  your  proofs,  as  we 


EXAMINATION  OF  THE   PARTY'S  WITNESSES.    251 

couusclled  above ;  and  that  you  will  call  your  witnesses  in 
corresponding  order.  The  material  parts  of  a  transaction 
are  generally  testified  to  with  best  effect  by  the  witness  in 
his  own  way,  if  he  be  started  right.  While  he  is  engaged 
upon  these  it  is  usually  wx^ll  not  to  divert  his  attention 
and  stop  the  flow  of  his  recollection  by  needless  questions. 
The  art  necessary  is  in  preparing  him  for  this  narrative. 
If  he  is  a  little  awkward  because  of  his  unfamiliarity  ^^ath 
the  court-room,  you  can  reassure  him  by  a  manner  which 
is  kind  and  considerate,  but  not  offensively  patronizing  as 
we  observe  it  to  be  too  often.  There  are  generally  many 
small  details,  such  as  the  relation  of  the  witness  to  the 
party,  the  means  of  his  knowledge,  etc.,  which  can  be  made 
to  introduce  him  to  the  jury  and  their  credit,  and  which, 
as  we  have  just  suggested,  can  be  used  to  give  him  ease. 

§  362.  When  you  have  brought  him  to  a  matter  of  sub- 
stance upon  which  you  must  interrogate  him,  you  are  no 
longer  to  lead  him.  If  leading  questions  are  used  they 
discredit  the  witness,  who  seems  to  give  prompted  testi- 
mony ;  they  sometimes  ensnare  him  into  incorrect  answers ; 
and  should  he  reply  counter  to  their  suggestions,  as  he  will 
often  do,  you  yourself  are  disparaged.  Mr.  Harris  truly 
says  of  them  that  if  they  are  allowed  by  your  opponent  "  it 
is  generally  to  your  disadvantage."  ^  He  gives  the  right 
rule  in  these  words  :  "  A  question,  without  being  leading, 
should  be  a  reminder  of  events  rather  than  a  test  of  the 
witness's  recollection."  ^ 

§  363.  The  following  passage  from  Mr.  Cox,  showing 
both  the  proper  use  of  the  questions  now  under  consider- 
ation, and  when  and  how  they  are  to  be  avoided,  is  given 
for  consideration  and  comment :  — 

1  Hints  on  Advocacy,  6tli  ed.,  38,  2  jtid.,  33, 


252  CONDUCT  IN  COURT. 

"  The  rule  against  leading  questions  is  properly  applica- 
ble  onhj  to  such  questions  as  relate  to  the  matter  at  issue. 
Whatever  some  priggish  opponent  may  protest,  it  is  per- 
mitted to  you,  and  the  judges  will  encourage  you  in  the 
practice,  to  lead  the  witness  directly  up  to  the  point  at 
issue.  It  saves  time  and  clears  the  case,  and  if  you  nar- 
rowly observe  experienced  advocates  you  will  find  that 
they  always  adopt  this  course.  For  instance,  instead  of 
putting  the  introductory  questions,  '  Where  do  you  live  ? ' 
*  What  are  you  ? '  and  so  forth,  you  should,  unless  there  be 
some  special  reason  to  the  contrary,  directly  put  the  lead- 
ing question,  '  Are  you  a  banker  carrying  on  business  in 
Lombard  Street  ? '  and  so  on,  until  you  approach  the 
questionable  matter,  when  of  course  you  will  proceed  to 
conduct  the  examination  according  to  the  strict  rule. 

§  364.  "  But  that  rule  is  not  so  easily  to  be  observed 
as  you  may  suppose.  Frequently  it  will  occur  that  you 
will  have  need  to  call  the  attention  of  the  witness  to  some- 
thing he  may  have  forgotten  ;  as  thus.  Suppose  that  you 
were  examining  as  to  a  certain  conversation.  The  witness 
has  narrated  the  greater  portion  of  it,  but  he  has  omitted 
a  passage  which  is  of  importance  to  you.  We  know  that 
in  fact  with  all  of  us  in  our  calmest  moments  it  is  difficult 
to  repeat  perfectly  the  whole  of  what  was  said  at  a  certain 
interview,  and  if  it  had  been  a  long  one,  probably  we 
might  repeat  it  half  a  dozen  times  and  each  time  omit  a 
different  portion  of  it,  although  in  either  case  the  omitted 
part  would  be  instantly  recalled  to  our  memories  if  we 
were  asked,  '  Did  he  not  also  say  so  and  so  ? '  or,  '  Was 
not  something  said  about  so  and  so  ? '  But  this  sort  of 
reminiscent  question  you  are  not  permitted  to  put  to  a 
witness  because  it  Avould  be  a  leading  question.  ...  In 


EXAMINATION  OF  THE  PARTY'S  WITNESSES.    253 

vain  you  ask  him,  '  Did  anything  more  pass  between  you  ? ' 
*  Was  nothing  more  said  ? '  '  Have  you  stated  all  that  oc- 
curred ? '  .  .  .  It  would  flash  upon  him  instantly  if  it  were 
to  be  repeated  or  even  to  be  half  uttered.  But  you  may 
not  help  him  so,  and  then  there  arises  a  perplexity  which 
every  advocate  must  often  have  experienced,  —  in  what 
manner  can  this  be  recalled  without  leading  ?  .  .  .  Your 
endeavor  must  now  be  to  suggest  indirectly  the  forgotten 
statement ;  and  to  do  so  without  violating  the  rule  which 
in  this  respect  is  certainly  pushed  further  than  justice  and 
fairness  to  the  infirmity  of  human  memory  can  sanction. 
As  each  case  must  depend  upon  its  circumstances  it  is  im- 
possible to  lay  down  any  rule  to  help  you,  or  even  to  hint 
at  forms  of  suggestion.  But  one  method  we  may  name  as 
having  proved  efficacious  when  others  had  failed,  and  that 
is  to  make  the  witness  repeat  his  account  of  the  inter- 
view or  whatever  it  may  be  ;  then  it  will  not  unfrequently 
happen  .  .  .  that  he  will  remember  and  repeat  the  pas- 
sage you  require,  and  omit  something  else  which  he  had 
previously  stated.  But  this  of  course  matters  not ;  your 
object  has  been  gained  and  your  adversary  may  take  what 
advantage  he  can  of  the  difference  in  the  statements.  If 
the  story  is  a  long  one  you  will  avoid  inflicting  this  repeti- 
tion of  it  until  other  expedients  have  been  tried  in  vain. 
It  may  be  added  that  a  single  word  often  suffices  to  sug- 
gest the  whole  sentence  ;  if  you  have  a  quick  wit  you  may 
sometimes  bring  out  the  matter  you  want  by  so  framing  a 
question  that  it  shall  contain  a  part  of  the  forgotten  sen- 
tence, ipsissimis  verbis,  but  otherwise  applied."  ^ 

§  365.    We  remark  as  to  this  quotation  that  it  assumes 
a  more  stringent  rule  than  now  exists ;  and  fm'ther,  that  it 
1  Advocate,  355-357. 


254  CONDUCT   IN   COURT. 

exaggerates  the  difficulty  mentioned.  You  are  always 
permitted  to  lead  the  witness  to  a  particular  subject. 
The  question,  "  Was  not  something  said  about  so  and  so  ? " 
which  jNIr.  Cox  says  is  not  to  be  asked,  is  permissible,  pro- 
vided it  is  only  suggestive  of  the  special  thing  to  which  you 
are  trying  to  direct  the  witness.  That  is  quite  different 
from  the  other,  "  Did  he  not  say  so  and  so  ? "  which  is 
leading,  as  it  goes  beyond  mere  mention  of  the  subject  and 
suggests  the  answer  desired.  The  instances  given  in  the 
last  sentence  of  the  passage  arc  by  no  means  as  exceptional 
as  they  are  there  represented.  The  witness's  recollection 
of  even  the  minutest  fact  can  always  be  drawn  out  by  un- 
exceptionable interrogation.  When  he  has  made  an  omis- 
sion you  are  not  to  resort  to  the  questions  supposed  by 
Mr.  Cox  to  be  vainly  put,  such  as,  "  Did  anything  more 
pass  between  you  ? "  "  Have  you  stated  all  that  oc- 
curred ?  "  They  but  burn  daylight.  You  must  particular- 
ize. Suppose  your  witness  is  testifying  to  the  confession 
of  a  burglary.  He  states  most  of  the  details,  but  he  forgets 
one  that  you  deem  of  importance  as  affording  you  opportu- 
nity of  corroboration.  You  may  thus  make  your  question 
a  proper  "  reminder,"  —  to  use  ]Mr.  Harris's  phrase  quoted 
above  :  "  If  the  defendant  told  the  place  where  he  got  the 
crow-bar  [which  was  mentioned  in  the  pre^^ous  testimony 
of  the  confession]  and  how  he  got  it,  what  did  he  say  ?  " 

It  will  profit  the  young  laA^'yer  to  train  himself,  while 
sifting  parties  and  witnesses  in  his  chambers,  to  draw  out 
all  of  their  knowledge  without  ever  asking  a  leading  ques- 
tion. When  the  habit  is  onco  fixed  he  will  find  not  only 
that  he  prepares  them  better  f  )r  examination  in  court,  but 
that  he  has  also  acquired  an  effective  faculty  for  the  court- 
room which  is  too  little  cultivated. 


EXAMINATION   OF   THE   PARTY'S  WITNESSES.     255 

§  366.  It  is  patent  that  your  questions  should  be  ex- 
pressed in  plain  language  and  should  he  as  short  and  clear 
as  is  compatible  with  your  object.  You  are  to  make  the 
witness  understand  you.  But  this  is  not  enough.  By 
reason  of  his  previous  conference  with  you,  he  may  under- 
stand when  the  jury  and  the  court  are  in  the  dark.  The 
following  passage  from  Mr.  Harris  is  in  place  here. 

"  I  will  give  an  instance  how  not  to  examine  a  witness. 
It  is  an  almost  verbatim  report  of  what  actually  occurred 
recently  at  a  trial  when  an  experienced  junior  was  exam- 
ining in  chief :  — 

"  '  Were  you  present  at  the  meeting  of  the  trustees 
when  an  agreement  was  entered  into  between  them  and 
the  plaintiff?'     Answer,  *  Yes.' 

"  Q.  — '  Will  you  be  kind  enough  to  tell  us  what  took 
place  between  the  parties  with  reference  to  the  agreement 
that  was  entered  into  between  them  ? '  This  is  an  instance 
of  verbosity  which  shows  that,  in  putting  questions,  long- 
drawn  sentences  should  be  mmded.  The  more  neatly  a 
question  is  put,  the  better,  as  it  has  to  be  understood  not 
only  by  the  witness  but  by  the  jury.  All  that  was  neces- 
sary to  be  asked  might  have  been  put  in  the  following 
words  :  '  Was  an  agreement  entered  into  between  the  trus- 
tees and  the  plaintiff? '     '  What  was  it  ? ' 

"  It  will  appear  even  more  strange,  perhaps,  when  I  say 
that,  after  the  answer  was  given  by  one  witness,  which  was 
all  that  was  necessary  to  prove  that  part  of  the  case,  the 
question  was  repeated  to  another  with  additional  verbiage  : 
'  Will  you  be  good  enough  to  inform  us  what  took  place 
upon  that  occasion  between  the  parties,  as  nearly  as  you 
can,  with  reference  to  the  agreement  that  was  then,  as 
you  have  stated,  entered  into  between  them  ?     Please  tell 


256  CONDUCT  IN  COURT. 

us,  not  exactly,  but  as  nearly  as  you  can  in  your  own  way 
what  his  exact  words  were.'  "  ^ 

§  367.  The  following  advice  of  Mr.  Harris  finds  a 
place  here.  It  is  all  excellent,  except  that  the  liability  of 
the  witness  to  confusion  is  much  overrated. 

"  The  best  thing  the  advocate  can  do  ...  is  to  remem- 
ber that  the  witness  has  something  to  tell,  and  that  but  for 
him  he  would  probably  tell  it  very  well  '  in  liis  own  way.' 
The  fewer  interruptions  therefore  the  better  ;  and  the  fewer 
questions,  the  less  questions  will  he  needed.  Watching 
should  be  the  chief  work  ;  especially  to  see  that  the  story 
be  not  confused  with  extraneous  and  irrelevant  matter. 
The  chief  error  the  witness  will  be  likely  to  fall  into  will 
be  hearsay  evidence :  either  he  says  to  somebody,  or  some- 
body says  to  him  something  which  is  inadmissible  and 
delays  the  progress  of  events.  But  the  witness  being  very 
tender,  you  must  be  careful  how  you  check  the  progress 
of  his  '  he  says  says  he's/  or  you  may  turn  off  the  stream 
altogether.  Pass  him  over  those  parts  as  though  you  were 
franking  him  through  a  turnstile,  and  then  show  him  where 
he  is ;  or  as  if  you  were  putting  a  blind  man  with  his  face 
in  the  direction  he  wished  to  go,  and  then  left  him  to  feel 
his  way  alone. 

"  The  most  useful  questions  for  eliciting  facts  are  the 
most  commonplace,  '  What  took  place  next  ? '  being  infi- 
nitely better  than  putting  a  question  from  the  narrative  in 
your  brief  which  leads  the  witness  to  contradict  you.  The 
interrogative  '  yes,'  as  it  asks  nothing  and  yet  everything 
is  better  than  a  rigmarole  phrase,  such  as, '  Do  you  remem- 
ber what  the  defendant  did  or  said  upon  that  ? '  The  wit- 
ness after  such  a  question  generally  feels  puzzled,  as  if  you 

^  Hints  on  Advocacy,  6th  ed.,  42. 


EXAMINATION   OF   THE   PARTY'S  WITNESSES.     257 

were  asking  liiin  a  conundrum  which  is  to  be  passed  on  to 
the  next  person  after  he  has  given  it  up."  ^ 

§  308.  Of  course  as  you  should  ask  as  few  questions  as 
is  necessary,  it  is  folly  to  press  and  sift  the  witness  too  far. 
Mr.  Harris  says  :  — 

^^  Never  cross-examine  your  own  witness.  .  .  .  You  will 
hear  an  advocate  cross-examine  his  witness  over  and  over 
again  without  knowing  it,  if  he  have  not  the  restraining 
hand  of  his  leader  to  check  him. 

**  Before  JMr.  Justice  Hawkins  not  long  since  a  junior 
was  conducting  a  case  which  seemed  pretty  clear  upon  the 
bare  statement  of  the  prosecutor.  But  he  was  asked,  *  Are 
you  sure  of  so  and  so  ? '  '  Yes,'  said  the  witness.  '  Quite  ? ' 
inquired  the  counsel.  '  Quite,'  said  the  witness.  *  You 
have  no  doubt  ? '  persisted  the  counsel,  thinking  he  was 
making  assurance  doubly  sure.  *  Well,'  said  the  witness, 
'  I  have  n't  much  doubt,  because  I  asked  my  wife.' 

"  Mr.  Justice  Hawkins  :  '  You  asked  your  wife  in  order 
to  be  sure  in  your  own  mind  ? '  '  Quite  so,  my  lord.' 
'  Then  you  had  some  doubt  before  ?  '  '  Well,  I  may  have 
had  a  little,  my  lord.' 

"  This  ended  the  case,  because  the  whole  question  turned 
upon  the  absolute  certainty  of  this  witness's  mind."^ 

To  complete  this  section,  we  suggest  that  you  can  pre- 
vent your  witness  from  stating  unfavorable  facts  within  his 
knowledge,  either  by  keeping  him  well  away  from  them,  or 
in  case  you  must  bring  him  near  them  by  so  framing  your 
questions  and  confining  them  to  particular  and  minute 
matters  as  to  allow  him  no  scope  for  answering  what  you 
desire  to  exclude.  These  unfavorable  facts  may  be  the 
business  of  your  adversary,  which  you  need  not  do  for  him. 

1  Hints  on  Advocacy,  6th  ed.,  31,  32.  2  ibid.,  37,  38. 

17 


258  CONDUCT   IN  COURT. 

Often,  however,  it  is  j^ood  policy,  us  we  have  already  urged, 
for  you  to  prove  the  adverse.  To  do  so  may  gain  credit 
for  an  interested  witness  in  more  important  parts  of  his 
testimony  and  it  may  create  with  the  jury  an  effective 
opinion  of  your  fairness.  It  has  also  the  advantage  of 
taking  the  wind  out  of  the  cross-examiner's  sails. 

§  3G9.  There  is  a  heedfulness  which  should  never  be 
abandoned.  Mr.  Cox  has  a  passage  on  this  topic  worthy 
of  consideration. 

"  Your  questions  in  examination  in  chief  should  be 
framed  carefully  and  put  deliberately.  .  .  .  You  should 
weigh  every  one  in  your  mind  before  you  put  it,  in  order 
that  it  may  be  so  framed  as  to  bring  out  in  answer  just  so 
much  as  you  desire  and  no  more.  .  .  .  The  court  will  soon 
learn  not  to  be  impatient  of  your  seeming  slowness  when 
it  discovers  that  you  have  in  fact  abbreviated  the  work 
by  a  pause  which  has  enabled  you  to  keep  the  evidence 
strictly  to  the  point  at  issue.  They  who  remember  Sir 
William  Follett  will  at  once  understand  our  meaning,  for 
one  of  his  most  remarkable  and  impressive  peculiarities 
was  the  grave  and  thoughtful  deliberation  with  which  he 
framed  and  put  his  questions  to  his  own  witness,  and  the 
result  of  which  was  that  he  was  seldom  annoyed  by  unex- 
pected answers,  or  by  additions  and  explanations  which  he 
did  not  desire."  ^ 

The  most  ordinary  fault  which  we  observe  is  redundant 
and  ill-considered  examination.  The  counsel  believes  that 
in  order  to  exhaust  his  witness's  knowledge  he  must  keep 
up  a  long  fire  of  questions,  where  fewer,  properly  selected, 
would  be  far  better.  A  foolish  question  is  often  a  snare 
to  your  witness.     He  wishes  to  oblige  you,  and  he  answers 

1  Advocate,  364, 


EXAMINATION   OF   THE   PARTY'S   WITNESSES.     259 

somctliino;  which  tlic  cross-examination  makes  i!;oo(l  use  of. 
Let  it  be  your  aim  always  to  draw  out  what  you  desire  by 
the  fewest  questions  and  to  permit  your  witness  to  answer 
these  only. 

The  last  hint  which  we  give  here  is  that  you  should  in 
general  follow  the  prevailing  current  of  the  transaction  in 
hand.  The  chronological  order  is  not  to  be  adopted  at  all 
tinies.^  It  will  often  be  beneficial  to  bring  out  prominent 
and  important  facts  independently,  —  to  make  them  con- 
spicuous by  isolation.  At  the  close  of  a  considerable  nar- 
rative frequently  you  must  turn  the  witness  back  to  matters 
which  he  has  failed  to  tell.  And  it  may  be  well  to  bring 
about  breaks  in  a  long  continuity,  to  recover  the  attention 
of  the  jury,  to  rest  yourself  or  the  witness.  When  you 
understand  that  he  is  to  be  sifted  thoroughly,  that  what 
he  says  is  to  be  made  intelligible  and  impressive  to  those 
appointed  to  hear  him,  and  that  harm  to  yourself  and  help 
to  the  other  side  are  to  be  avoided,  you  keep  hold  of  the 
light  which  shows  you  the  true  way. 

§  3/0.  We  have  nearly  finished  what  we  wished  to  say 
of  the  direct  examination  of  the  ordinary  witness,  —  the 
typical  American  witness,  as  we  may  call  him.  We  only 
add,  that  his  knowledge  of  facts  supi^orting  the  prima  facie 
case  is  to  be  exhausted.  When  you  think  that  your  task 
is  done,  run  over  his  testimony  rapidly  in  your  mind,  or 
glance  through  your  memoranda,  or  inquire  of  your  asso- 
ciates, to  see  if  anything  yet  remains  to  be  proved  by  the 
witness.  Supply  all  omissions  by  well-directed  inquiries 
before  you  turn  him  over  to  the  cross-examiner.  Thus 
you  will  avoid  having  to  recall  your  witnesses.     One  who 

1  jMaeaulii}',  till!  best  of  all  story-tellci-s,  says,  "Mere  chronological  order 
is  not  the  order  for  a  com[dicatod  narrative." 


260  CONDUCT  IN  COURT. 

returns  to  the  box  creates  often  an  unfavorable  opinion 
because  of  a  suspicion  that  be  is  now  testifying  what  has 
been  suggested  to  him.  Of  course,  if  you  liave  some  com- 
manding reason  you  will  not  fail  to  recall ;  and  generally 
you  should  take  pains  to  show  why  you  did  not  question 
him  before  as  you  do  now. 

§  371.  Having  treated  the  average  witness,  we  will 
now  devote  a  few  sections  to  those  of  exceptional  char- 
acter. 

"  If  your  witness  be  timid,  it  will  be  your  care  to  restore 
his  self-possession  before  you  take  him  to  the  material  part 
of  his  testimony.  This  you  should  effect  by  assuming  a 
cheerful  and  friendly  manner  and  tone ;  and  if  you  have 
the  art  to  make  him  smile,  your  wit  would  be  better  timed 
than  is  always  the  case  with  forensic  jests.  Keep  him  em- 
ployed on  the  fringe  of  the  case  until  you  are  satisfied  that 
his  courage  is  restored,  and  then  you  may  proceed  with 
him  as  with  any  other  witness.  But  be  very  careful  not 
to  take  him  to  material  topics  while  he  is  under  the  influ- 
ence of  fear ;  for  in  this  state  a  witness  is  apt  to  become 
confused  and  to  contradict  himself,  and  so  to  afford  to 
your  adversary  a  theme  for  damaging  comment."  ^ 

With  the  last  quotation  compare  the  pertinent  Golden 
Rule  of  David  Paul  Bro^vn  :  — 

"  If  they  [your  witnesses]  are  alarmed  or  diffident  and 
their  thoughts  are  evidently  scattered,  commence  your  ex- 
amination with  matters  of  a  familiar  character  remotely 
connected  with  the  subject  of  their  alarm  or  the  matter  in 
issue,  as,  for  instance  :  Where  do  you  live  ?  Do  you  know 
the  parties  ?  How  long  have  you  known  them  ?  etc. 
And  when  you  have  restored  them  to  composure  and  the 

^  Cox,  Advocate,  361. 


EXAMINATION   OF  THE   PARTY'S  WITNESSES.     2(31 

mind  has  regained  its  eqnilibriuni,  proceed  to  tlic  more  es- 
sential features  of  tlie  case,  being  careful  to  be  mild  and 
distinct  in  your  approaches  lest  you  may  trouble  the  foun- 
tain again  from  which  you  arc  to  drink."  ^ 

§  372.  Upon  the  quotations  in  the  last  section  we  re- 
mark that  it  is  your  business  to  anticipate  the  fright  or 
discomposure  of  the  witness  by  noting  his  manner  and 
words  in  the  office.  Women  and  diffident  men  will  volu- 
bly pour  out  to  you  their  fears  of  the  court-room,  if  you 
will  but  listen ;  and  listen  you  ought,  to  be  prepared  for 
theu"  examination  or  to  prepare  your  associate.  If  you  will 
accept  their  confidence  you  will  find  them  leaning  on  you 
as  a  protector  and  furnished  the  better  therefrom  for  the 
day  of  trial.  But  sometimes,  in  spite  of  the  most  prudent 
anticipation,  the  witness  will  be  discomposed  when  he  is 
called,  and  if  so  the  advice  given  in  the  quoted  passages  is 
admirable. 

These  timid  witnesses  often  need  support.  We  may 
especially  apply  to  them  what  the  old  authority  advises  as 
to  all :  "  They  should  be  well  exercised  before  they  are 
brought  into  court  and  tried  with  various  interrogatories, 
such  as  are  likely  to  be  put  by  an  advocate  on  the  other 
side.  By  this  means  they  will  either  be  consistent  in  their 
statements,  or  if  they  stumble  at  all  will  be  set  upon  their 
feet  again,  as  it  were,  by  some  opportune  question  from 
him  by  whom  they  were  brought  forward,"  ^ 

Your  more  self-possessed  witnesses,  as  well  as  those 
now  under  consideration,  will  be  profited  by  rehearsals 
and  severe  cross-examination  from  yourself.  And  the 
course  advised  will  also  better  furnish  you  for  the  direct 
examination. 

1  Second  Golden  Rule.  ^  Quiutiliau,  Institutes,  V.  7.  11. 


2G2  CONDUCT  IN  COURT. 

§  ."37.'^.  But  to  return  to  tlic  cxtra-curial  treatment  of 
timid  witnesses,  we  give  an  cxamjile  from  Webster's  prac- 
tiee.  He  was  for  a  will  impugned  on  the  ground  that  one 
of  the  three  witnesses  thereto  was  insane.  It  was  noto- 
rious that  this  particular  witness,  a  young  man  of  morbid 
if  not  unsound  mind  and  great  sensitiveness,  had  once 
tried  to  drown  himself.  He  was  in  so  much  mental  com- 
motion at  the  prospect  of  cross-examination  as  to  this  fact 
that  the  associate  counsel  had  pronounced  in  favor  of  not 
calling  him.  But  Webster  insisted  that  he  be  allowed  to 
decide  the  true  policy  after  he  had  talked  with  the  witness. 
He  contrived  an  interview.  He  won  the  young  man's  con- 
fidence, and  drew  from  him  an  account  of  his  life,  the  at- 
tempted suicide,  the  hearty  repentance,  and  the  assurance 
of  forgiveness  which  he  felt.  The  rest  we  give  in  the 
words  of  the  great  advocate,  as  reported  by  a  biographer. 

"  When  about  leaving  him  I  told  him  that  I  wished  him 
the  next  day,  when  I  would  summon  him  into  court,  to  go 
there,  and  consider  me  as  his  friend.  ...  I  said :  '  You 
have  the  sympathy  of  everybody ;  and  I  wish  you  to  tell, 
iu  answer  to  my  questions,  the  story  of  your  life  as  you 
have  told  it  to  me,  merely  to  show  to  the  jury  and  court 
the  condition  of  your  mind.  You  may  feel  absolutely  con- 
fident that  nobody  shall  harm  you.'  He  went  into  court 
the  next  day  and  told  the  story  so  eloquently  that  there 
was  hardly  a  dry  eye  in  the  court-room.  .  .  .  When  the 
young  man  had  left  the  stand  I  felt  secure  in  my  case ; 
and  it  was  won  upon  that  single  point."  ^ 

§  374.    Mr.  Cox  notices  the  stupid  witness :  — 

"  He  cannot  understand  your  questions  or  he  answers 
them  so  imperfectly  that  he  had  better  have  left  them  un- 

1  Harvey,  Reminiscences,  105-110. 


EXAMINATION   OF   THE   PARTY'S   WITNESSES.     263 

answered.  With  such  a  one  the  only  resource  is  patience 
and  good  temper.  If  you  are  cross  with  him  you  will 
be  sure  to  increase  his  stupidity  and  to  convert  evidence 
that  means  nothing  into  evidence  that  is  contradictory  and 
confused.  The  preservation  of  imperturbable  good  temper 
is  a  golden  rule  w4th  an  advocate.  .  .  .  Entire  self-com- 
mand is  his  greatest  virtue,  never  more  in  requisition  than 
in  dealing  ^vith  a  stupid  witness.  Instead  of  rebuking  him 
you  should  encourage  him  by  a  look  and  expression  of  ap- 
proval, and  you  must  frame  your  question  in  another  shape 
better  suited  to  his  dense  faculties.  If  baffled  again  do 
not  retreat,  but  renew  the  catechism  until  your  object  is 
obtained.  In  constructing  your  questions  you  will  often 
find  a  clue  to  his  links  of  thought  by  observing  his  an- 
swers, and  your  next  question  might  then,  with  a  little 
ingenuity,  be  so  framed  as  to  fall  in  with  his  train  of 
ideas.  Thus  patiently  treated  there  are  few  witnesses  so 
dull  as  not  to  be  made  efficient  for  the  purpose  of  an  ex- 
amination in  chief."  ^ 

§  375.  I  w^ill  add  that  the  trouble  with  a  dull  or  stupid 
or  uneducated  witness  is  often  prolonged  because  the  ex- 
aminer keeps  himself  in  a  region  elevated  above  the  com- 
prehension of  his  answerer.  He  must  learn  to  lower  to 
his  level.  One  who  can  make  children  always  understand 
him  will  know  how  to  deal  w^ith  a  dunce  of  a  witness. 
We  give  in  a  note  below  an  example  from  an  eminent 
novelist,  illustrating  how  a  superior  mind  can  lock  itself 
up  to  an. inferior  of  even  a  high  degree  of  intelligence.^ 

1  Advocate,  361,  362. 

2  In  the  following  passage  from  Bulwer's  "  My  Novel,"  Dr.  Riccabocca 
begins :  — 

"  '  For  your  sake,  young  gentleman,  I  regret  that  your  holidays  are  so 


264  CONDUCT  IN   COURT. 

This  is  the  fault  of  the  former.  It  is  easier  for  the  other 
to  understaiul  the  superior  in  intellect,  if  the  latter  will 
only  learn  how  to  talk  to  him,  than  to  understand  what 
an  equal  says  to  him  on  subjects  out  of  his  accustomed 
range  of  thought. 

§  370.  ''  There  are  two  kinds  of  troublesome  witnesses 
whom  you  will  have  to  encounter  in  the  conduct  of  a 
cause,  —  those  who  say  too  much  and  those  who  say  too 
little.  Of  these  by  far  the  most  difficult  to  deal  with  are 
your  over-zealous  friends,  —  your  witnesses  who  prove  too 
much.     A  very  little  experience  will  enable  you  to  detect 

early  ;  for  mine  1  must  rejoice,  since  I  accept  the  kind  invitation  you  have 
rendered  doubly  gratifying  by  bringing  it  yourself.' 

"'Deuce  take  the  fellow  and  his  fine  speeches!  One  don't  know 
which  way  to  look,'  thought  English  Frank. 

"The  Italian  smiled  again,  as  if  this  time  he  had  read  the  boy's  heart 
without  need  of  those  piercing  black  eyes,  and  said  less  ceremoniously  than 
before,  'You  don't  care  much  for  compliments,  young  gentleman.' 

"  '  No,  I  don't,  indeed,'  said  Frank  heartily. 

"  '  So  much  the  better  for  you,  since  your  way  in  the  world  is  made  ; 
it  would  be  so  much  the  worse  if  yoxi  had  to  make  it.' 

"  Frank  looked  puzzled:  the  thought  was  too  deep  for  him,  so  he  turned 
to  the  pictures. 

"  'These  are  very  funny,'  said  he  :  'they  seem  capitally  done.  Who 
did  'em  ? ' 

"  'Signorino  Hazeldean,  you  are  giving  me  what  you  refused  yourself.' 

"  '  Eh  ? '  said  Frank,  inquiringly. 

' '  '  Compliments. ' 

"  '  Oh  —  I  —  no  ;  but  they  are  well  done  ;  are  n't  they,  sir  ? ' 

"  '  Not  particularly  :  you  speak  to  the  artist.' 

"  '  What  !  you  painted  them  ? ' 

"'Yes.' 

"  '  And  the  pictures  in  the  hall  ? ' 

"'Those  too.' 

"  '  Taken  from  nature,  eh  ?' 

"'Nature,'  said  the  Italian  sententiously,  perhaps  evasively,  'lets 
nothing  be  taken  from  her.' 

"  '  Oh  ! '  said  Frank,  puzzled  again.     'Well,  I  must  wish  you  good 


EXAMINATION  OF   THE   PARTY'S   WITNESSES.     265 

these  personages  almost  at  a  glance,  certainly  after  a  few 
sentences.  They  usually  try  to  look  wonderfully  easy  and 
confident ;  answer  off-hand  with  extraordinary  glibness  and 
give  you  twice  as  much  information  as  you  have  asked  for. 
.  .  .  Keep  such  witnesses  closely  to  the  point  for  which 
they  are  required,  and  having  got  from  them  just  what  you 
want  dismiss  them,  right  thankful  if  they  have  not  done 
you  more  harm  than  good."  ^ 

Compare  with  this  the  directions  of  Da\ad  Paul  Brown  : 
"  As  to  your  own  witnesses  :  if  they  are  bold  and  may 
injure  your  cause  by  pertness  or  forwardness,  observe  a 
gravity  and  ceremony  of  manner  towards  them  which  may 
be  calculated  to  repress  their  assurance."  ^ 

§  377.  The  counsels  of  both  authors  are  valuable.  I 
will  however  suggest  that  it  is  the  business  of  counsel  to 
know  beforehand  what  is  the  inclination  of  a  witness.  No 
gentleman  of  the  bar  will  ever  tell  one  to  say  anything  but 
the  truth ;  but  he  will  be  remiss  in  his  duty  when  he  finds 
him  in  the  considtation-room  bold,  hasty,  pert,  forward,  or 
too  partisan,  not  to  rebuke  and  reprove  him  into  a  more 
becoming  behavior,  and  thus  rightly  prepare  him  for  the 
witness-box.  For  all  of  this  precaution  the  advice  of  the 
Golden  Rule  just  quoted  must  now  and  then  be  followed. 

§  378.  "  If  you  perceive  that  the  mind  of  the  witness  is 
imbued  with  prejudices  against  your  client,  hope  but  little 
from  such  a  quarter  :  unless  there  be  some  facts  which  are 
essential  to  your  client's  protection  and  which  that  witness 
alone  can  prove,  either  do  not  call  him  or  get  rid  of  him  as 
soon  as  possible.  If  the  opposite  counsel  perceive  the  bias 
to  which  I  have  referred,  he  may  employ  it  to  your  own 
ruin.     In  judicial  inquiries,  of  all  possible  evils  the  worst 

1  Cox,  Advocate,  358,  359.  ^  First  Golden  Rule. 


26(5  CONDUCT   IN   COURT. 

and  the  least  to  be  resisted  is  an  enemy  in  the  disguise  of  a 
friend.  You  cannot  inipeacli  him  ;  you  cannot  cross-exam- 
ine him  ;  you  cannot  disarm  him  ;  you  cannot  indirectly 
even  assail  him  ;  and  if  you  exercise  the  only  privilege  that 
is  left  to  you  and  call  other  witnesses  for  the  purpose  of 
explanation,  you  must  bear  in  mind  that,  instead  of  carry- 
ing the  war  into  the  enemy's  country,  the  struggle  is  be- 
tween sections  of  your  own  forces  and  in  the  very  heart 
perhaps  of  your  own  camp.     Avoid  this  by  all  means."  ^ 

§  3/9.  The  rule  of  David  Paul  Brown  last  quoted 
assumes  that  a  witness  often  eludes  the  watchfulness  of 
party,  friends,  and  counsel,  proving  at  last  upon  the  stand 
to  be  but  a  spy.  Prudence  will  guard  against  such  a  ca- 
tastrophe.^ Every  witness  of  doubtful  character  should 
be  committed  to  his  narrative  in  the  hearing  of  those  who 
will  quickly  bear  him  down  if  he  swerve.  The  party  is 
not  at  the  mercy  of  a  treacherous  witness.     The  true  policy 

1  Fouitli  Golden  Rule  of  David  Paul  Brown. 

2  Compare  this  from  Quintilian  :  "In  regard  to  witnesses  wlio  are  con- 
sistent in  their  evidence  we  mnst  be  on  our  guard  against  treachery  ;  for 
they  are  often  thrown  in  our  way  by  the  opposite  party,  and  after  promis- 
ing everything  favorable  give  answers  of  a  contrary  character,  and  have 
the  more  weight  against  us  when  they  do  not  refute  what  is  to  our  preju- 
dice but  confess  the  truth  of  it.  We  must  inquire,  therefore,  what  motives 
they  ap))ear  to  have  for  declaring  against  our  adversary;  nor  is  it  sufficient 
to  know  that  they  ivere  his  enemies;  we  must  ascertain  whether  they  have 
ceased  to  be  so  ;  whether  they  may  not  seek  reconciliation  with  him  at  our 
expense  ;  whether  they  have  been  bribed  ;  or  whether  they  may  not  have 
changed  their  purpose  from  penitential  feelings  ;  precautions  not  only  ne- 
cessary in  regard  to  witnesses  who  know  that  which  they  intend  to  say  is 
true,  but  far  more  necessary  in  respect  to  those  who  promise  to  say  what 
is  false.  For  they  are  more  likely  to  repent  and  their  promises  are  more  to 
be  suspected  ;  and  even  if  they  keep  to  their  word  it  is  much  more  easy  to 
refute  them."     Institutes,  V.  7.  12-14. 

The  advanced  morality  of  our  day  comes  out  as  we  see  from  the  conclu- 
sion of  this  quotation  that  tlie  author  did  not  reprehend  the  use  of  wit- 
nesses who  had  promised  the  client  to  swear  falsely. 


EXAMINATION   OF   THE   PARTY'S   WITNESSES.     267 

is  by  proper  means  to  avoid  or  to  unarm  liim.  If  you  are 
surprised,  show  that  he  has  entrapped  you  and  then  im- 
peach him  by  his  contradictory  statement  made  to  your 
client  or  his  friends.  If  you  cannot  do  tliis,  a  straightfor- 
ward and  manly  grappling  with  the  traitor  will  turn  the 
sympathy  powerfully  against  him.  Tiie  law  and  the  courts 
are  becoming  too  wise  to  allow  justice  to  be  cheated  under 
h'rational  rules.  The  most  busy  and  eminent  counsel  can 
at  least,  in  the  consultation  the  night  before  the  trial,  care- 
fully probe  and  search  all  the  witnesses  of  the  client's  fol- 
lomng,  and  thus  be  forewarned  against  any  lurking  partisan 
of  the  adversary. 

§  380.  But  the  hostile  witness  must  often  be  well  ex- 
amined, and  what  ]Mr.  Cox  says  on  this  subject  should  be 
considered  here ;  wc  therefore  append  it :  — 

"  There  is  no  more  difficult  and  delicate  task  in  the  con- 
duct of  an  examination  in  chief  than  so  skilfully  to  manage 
an  adverse  witness  called  by  yourself  that  he  shall  state 
just  so  much  as  you  require  and  no  more. 

"  When  the  court  is  satisfied  that  the  witness  is  really  an 
adverse  one,  the  strict  rule  that  forbids  leading  questions 
will  be  relaxed,  and  you  will  be  permitted  to  conduct  the 
examination  somewhat  more  after  the  manner  of  a  cross- 
examination.  ...  As  a  general  rule  it  may  be  taken  that 
the  less  you  say  to  him  the  better  for  you.  Bring  him  di- 
rectly to  the  point  which  he  is  called  to  prove ;  frame  your 
questions  so  that  they  shall  afford  the  least  possible  room 
for  evasion,  or,  what  is  still  worse,  explanation.  ...  If 
you  are  satisfied  beyond  doubt  of  his  hostility,  and  he 
should,  as  is  often  seen,  assume  a  frank  and  friendly  mien 
in  the  witness-box,  instead  of  accepting  his  approaches, 
reject  them  with  indignation  ;  let  him  see  that  you  under- 


2G8  CONDUCT  IN  COURT. 

stand  him  and  arc  not  to  be  imposed  upon,  and  endeavor 
to  provoke  him  to  the  exliibition  of  his  true  fcelino-s. 
It  is  the  first  eare  of  a  skilful  advocate  in  dealing  with  his 
own  adverse  witness  not  only  not  to  conceal  tlie  hostility, 
but  to  nuike  it  prominent,  —  to  provoke  it  to  an  open  dis- 
play and  drmv  out  the  expi'cssion  of  the  feeling,  if  it  docs 
not  sufficiently  appear  without  a  stimulus.  If  he  be  ad- 
verse at  all,  you  cannot  make  him  aijpear  too  adverse, 
because  the  more  hostile  he  is,  the  more  will  his  evidence 
in  your  fevor  be  esteemed,  and  the  less  weight  will  be  given 
to  such  as  he  may  utter  against  you."  ^ 

1  Advocate,  359-361. 

Quintilian  advises  the  accuser  to  rein  in  the  willing,  and  spur  the  un- 
willing, witness  as  follows  ;  "Of  witnesses  who  are  summoned  to  give  evi- 
dence, some  are  willing  to  hurt  the  accused  party  and  some  unwilling.  .  .  . 
Let  us  suppose  that  the  accuser  knows  the  inclination.  ...  If  he  find  the 
witness  disposed  to  prejudice  the  accxised,  he  ought  to  take  the  utmost  care 
that  his  disposition  may  not  show  itself;  and  he  should  not  question  him 
at  once  on  the  point  for  decision,  hut  proceed  to  it  circuitously,  so  that 
what  the  examiner  chiefly  wants  him  to  say  may  appear  to  be  wrung  from 
him.  Nor  should  he  j)ress  him  with  too  many  interrogatories,  lest  the 
witness  by  replying  freely  to  everything  should  invalidate  his  own  credit ; 
but  he  should  draw  from  him  only  so  much  as  it  may  seem  reasonable  to 
elicit  from  one  witness.  But  in  the  case  of  one  who  will  not  speak  the 
truth  unless  against  his  will,  the  great  happiness  in  an  examiner  is  to 
extort  from  him  what  he  does  not  wish  to  say  ;  and  this  cannot  be  done 
otherwise  than  by  questions  that  seem  wide  of  the  matter  in  hand  ;  for  to 
these  he  will  give  such  answers  as  he  thinks  will  not  hurt  his  party  ;  and 
then  from  various  jiarticulars  which  he  may  confess  he  will  be  reduced  to 
the  inability  of  denying  what  he  does  not  wish  to  acknowledge.  For  as,  in 
a  set  speech,  we  commonly  collect  detached  arguments  which  taken  singly 
seem  to  bear  but  lightly  on  the  accused,  but  by  the  combination  of  which 
we  succeed  in  proving  the  charge,  so  a  witness  of  this  kind  must  be  ques- 
tioned on  many  points  regarding  antecedent  and  subsequent  circumstances, 
and  concerning  places,  times,  persons,  and  other  subjects  ;  so  that  he  may 
be  brought  to  give  some  answer  ;  after  which  he  nuist  either  acknowledge 
what  we  wish,  or  contradict  what  he  himself  has  said.  If  we  do  not  suc- 
ceed in  that  object,  it  will  then  be  manifest  that  he  is  unwilling  to  speak  ; 
and  he  must  be  led  on  to  other  matters  that  he  may  be  caught  tripping  if 


EXAMINATION  OF  THE   PARTY'S   WITNESSES.     2G9 

§  381.  The  examination  of  a  ^stubborn  witness  of  this 
kind  must  often  be  carefully  premeditated.  Sometimes 
persistent  and  detailed  interrogation  is  your  only  cue, 
while  again  you  may  haTe  to  prepare  the  way  by  testimony 
with  which  he  will  not  dare  to  collide.  A  firm  of  manu- 
facturers had  contracted  with  an  agent  to  sell  for  them  in 
a  particular  territory,  reserving  the  power  to  discharge  him 
on  giving  ten  days'  notice.  They  were  bound  to  fill  all 
orders  for  their  products  at  given  prices  forwarded  by  the 
agent.  Several  months  after  the  connection  commenced 
the  agent  received  an  unexpected  notice  terminating  the 
agency,  and,  what  was  more  unexpected,  his  bookkeeper 
threw  up  his  place  and  announced  that  at  the  expiration 
of  the  ten  days  he  would  represent  the  manufacturers  in 
the  territory  mentioned.  The  agent  had  left  the  business 
almost  wholly  to  the  bookkeeper,  and  therefore  in  a  suit 
against  the  firm  he  had  to  prove  most  of  the  items  in  his 
account  by  the  latter,  who  had  become  very  hostile  to  him. 
In  the  direct  examination  this  witness  was  carried  through 
the  pertinent  entries  in  the  books  and  letters  in  the  press- 
book,  —  all  in  his  handwriting.  The  letters  contained 
many  orders  wdiicli  the  firm  denied  having  received.  Of 
course  the  originals  had  been  called  for  properly.  The 
witness  was  forced  to  admit  that  he  had  duly  mailed  every 
letter  which  he  had  copied.  As  to  a  few  items  which 
could  not  be  established  in  this  way,  he  was  made  to  hear 
beforehand  certain  reputable  men  testify  that  he  had  taken 
their  orders,  and  this  induced  him  to  say  that  these  also 

possible  on  some  point,  though  it  be  unconnected  with  tlie  cause  ;  he  may 
be  detained  an  extraordinaiy  time,  that  by  saj'ing  everything,  and  more 
than  the  case  rec[uires,  in  favor  of  the  accused,  he  may  make  himself  sus- 
pected by  tlie  judge  ;  and  he  will  thus  do  no  less  damage  to  the  accused 
than  if  he  had  stated  the  tiuth  against  him."     Institutes,  V.  7.  15-19. 


270  CONDUCT   IN   COURT. 

liad  been  forwarded.  Every  answer  proving  an  item  came 
from  him  like  the  drawing  of  an  eye-tooth,  while  he  was 
voluble  in  insimiations  against  the  honesty  of  his  former 
employer  who  had  put  unwonted  trust  in  him.  His  con- 
duet  as  revealed  under  examination  looked  so  much  like 
treachery  as  to  turn  public  sympathy  against  the  defend- 
ants, who  at  last  succumbed  and  paid  most  of  the  agent's 
claim. 

The  right  treatment  of  such  a  witness  is  like  the  cross- 
examination  purposed  to  pull  out  facts  from  one  who 
would  hold  them  back.  When  you  must  use  him,  your 
opening  of  the  evidence  should  parade  his  hostility  and 
explain  the  necessity  of  your  calling  him.  'And  we  will 
anticipate  a  part  of  your  duties  as  cross-examiner  which 
can  be  appropriately  glanced  at  here,  by  warning  you  to 
stand  on  your  guard  against  the  spurious  hostile  witnesses 
of  the  other  side.  Be  not  deceived  into  relying  upon  them 
as  allies,  and  be  ingenious  enough  to  make  them  unmask. 

§  382.  In  close  connection  with  the  foregoing  is  the 
third  Golden  Rule  of  David  Paul  Brown  :  — 

"  If  the  evidence  of  your  own  witnesses  be  unfavorable 
to  you  (which  should  always  be  carefully  guarded  against) 
exhibit  no  want  of  composure ;  for  there  arc  many  minds 
that  form  opinions  of  the  nature  or  character  of  testimony 
chiefly  from  the  effect  which  it  may  appear  to  produce 
upon  the  counsel." 

It  is  a  still  greater  reason  for  maintaining  your  comj)o- 
sure  that  otherwise  you  will  often  fail  to  find  the  right 
way  around  the  unexpected  answer. 

§  383.  But  avoid  the  hostile  witness  if  you  can.  David 
Paul  Brown  says  in  the  fifth  Golden  Rule  :  — 

"  Never  call  a  Avitness  whom  your  adversary  will  be 


EXAMINATION   OF   THE   PARTY'S  WITNESSES.     271 

compelled  to  call.  This  will  afford  jou  the  privilege  of 
cross-examination,  take  from  yonr  opponent  the  same 
privilege  it  thus  gives  jou,  and  in  addition  thereto  not 
only  render  everything  unfavorable  said  by  the  witness 
doubly  operative  against  the  party  calling  him,  but  also 
deprive  that  party  of  the  power  of  counteracting  the 
effect  of  the  testimony. " 

§  384.  We  have  reviewed  in  detail  the  different  leading 
classes  of  witnesses  from  the  standpoint  of  the  direct  ex- 
aminer. We  have  yet  something  to  add  before  his  duties 
are  fully  presented. 

§  385.    Mr.  Cox  says  :  — 

"  Great  caution  is  required  in  the  examination  of  all 
your  witnesses  after  the  first  to  prevent  their  disagreement 
in  any  important  particulars.  No  error  of  inexperience  or 
unskilfulness  is  more  common  than  to  examine  a  mtness 
according  to  the  hn'ef,  without  reference  to  the  evidence 
previously  given  and  the  requirements  of  the  case  as  it 
stands.  If  you  fear  that  there  may  be  conflicting  testi- 
mony on  any  point,  the  first  witness  having  varied  from 
the  statement  in  the  brief,  it  is  usually  better  to  leave  it 
as  it  stands  upon  that  single  testimony  than  to  bring  out 
a  contradiction  ;  but  upon  this  you  must  exercise  your  sa- 
gacity at  the  moment ;  it  nmst  depend  upon  the  particular 
focts  of  the  case  ;  w^e  only  suggest  to  you  that  it  is  one  of 
the  difficulties  of  examination  in  chief  which  you  should 
be  prepared  to  encounter."  ^ 

This  passage  shows  the  incurable  evil  of  the  English 
dinsion  of  counsel  and  attorney.  According  to  their 
usages  counsel  would  be  degraded  by  any  other  comnmni- 
cation  with  the  witnesses  than  while  they  are  in  the  box. 

1  Advocate,  357,  358. 


272  CONDUCT  IN   COURT. 

Familiar  contact  with  them  is  for  the  attorney  alone,  wlio 
is  of  inferior  grade  and  ability ;  and  whose  nnsapi)rehen- 
sion  of  the  testimony  is  often  a  snare  to  the  examiner, 
when  if  the  latter  could  have  had  a  few  minutes  private 
intercourse  with  the  witness  he  could  have  corrected  it  and 
perhaps  steered  the  cause  around  the  breakers.  Let  the 
American  lawyer  avoid  this  evil  by  talking  with  the  wit- 
nesses for  himself,  and  thus  come  to  the  trial  fully  informed. 
He  will  thereby  find  out  in  time  all  the  material  conflicts 
between  them. 

§  386.  This  subject  of  avoiding  conflicts  in  one's  testi- 
mony is  so  important  that  we  will  give  an  illustrative  case. 
The  reader  is  asked  to  recall  the  instance  already  used  by 
us,^  where  the  caveator  of  a  will  introduced  the  testimony 
of  two  women,  who  while  they  agreed  as  to  the  main  fact 
yet  contradicted  each  other  in  so  many  other  particulars  of 
importance  as  to  bring  discredit  upon  themselves.  We 
said  it  was  a  blunder  in  the  preparation  that  their  discre- 
pancies had  not  been  discovered  beforehand  ;  and  then  only 
the  one  disinterested  should  have  been  examined.  But 
we  are  now  concerned  with  another  blunder  which  was 
committed  on  the  trial.  The  caveator  put  in  evidence  the 
testimony  of  both  witnesses.  This  he  was  not  obliged  to 
do.  He  could  have  relied  on  the  disinterested  witness, 
and  if  the  propounders  had  introduced  that  of  the  other 
they  would  have  been  held  to  tlie  rule  that  they  could  not 
discredit  their  own  witness,  who  be  it  remembered  testi- 
fied positively  for  the  caveator  as  to  the  cardinal  proposi- 
tion. And  had  the  propounders  left  the  testimony  of  this 
disinterested  woman  unattacked,  —  and  they  had  no  means 
of  attacking  it  save  by  that  of  the  other,  —  it  is  diflicult  to 

1  Ante,  §  118. 


EXAMINATION   OF   THE   PARTY'S   WITNESSES.     273 

see  how  they  could  luive  avoided  an  adverse  verdict.  As 
it  was,  the  caveator  seemed  to  believe  that,  because  he  had 
taken  the  testimony  of  both  women  by  commission,  he 
must  use  all  of  it.  And  so  he  not  only  prepared  adverse 
evidence,  but  he  actually  introduced  it  when  there  was  no 
need,  and  thereby  broke  down  his  case. 

§  387.  We  have  run  over  the  usual  incidents  of  direct 
examination  which  lie  on  the  surface.  We  have  reserved 
for  this  place  a  consideration  of  its  real  purpose  and  end. 
It  is  to  be  remembered  that  until  the  argument  all  of  the 
evidence  as  it  comes  out  is  treated  as  true.  The  object  of 
a  party  is  to  make  his  evidence  complete  before  he  rests, 
either  charging  the  adversary  or  discharging  himself.  We 
will  illustrate.  Suppose  a  suit  brought  on  a  promissory 
note  and  the  plea  is  payment.  The  plaintiff's  first  evi- 
dence will  be  the  note,  which  when  put  in  charges  the 
defendant.  If,  however,  the  latter  proves  by  certain  wit- 
nesses that  on  a  certain  day  he  paid  the  plaintiff  the 
amount  due,  which  was  accepted  by  him  in  satisftiction  of 
the  note,  he  may  safely  rest,  for  he  has  discharged  himself. 
Then  the  plaintiff  may  call  witnesses  who  impeach  those 
of  the  adversary,  and  others  who  prove  an  admission  by  the 
defendant  that  the  payment  mentioned  was  to  be  applied  to 
another  purpose ;  and  thus  the  defendant  is  charged  again. 
The  defendant  may  next  contradict  or  explain  away  the 
admission,  and  strengthen  his  proof  of  the  payment  of  the 
note,  thus  discharging  himself  the  second  time.  And  the 
course  of  the  evidence  may  go  through  further  alternations 
of  charging  and  discharging. 

Each  adversary  must  at  every  stage  make  his  evidence 
so  strong  before  he  rests  that,  if  it  be  assumed  to  be  true, 
he  is  entitled  to  the  verdict.     This  is  always  the  leading 

IS 


274  CONDUCT   IN   COURT. 

object  to  the  direct  examiner,  whether  lie  is  counsel  for 
the  phiintifF  or  the  defendant,  and  at  wliatever  stage  or 
turn  of  the  evidence  he  may  be.  And  tlie  testimony  of 
eveiy  one  of  liis  witnesses  is  to  be  regarded  only  as  means 
to  attain  this  object.  This  is  the  wise  counsel  of  Da\id 
Paul  Brown,  who  in  one  of  liis  Golden  Rules  says  that 
counsel  should  never  ask  a  question  without  an  object, 
nor  without  being  able  to  connect  that  object  with  the 
case,  if  the  question  is  objected  to  as  irrelative ;  and  in 
another :  "  Never  begin  before  you  are  ready,  and  always 
finish  when  you  have  done.  In  other  words,  do  not  ques- 
tion for  question's  sake,  but  for  an  answer."  Of  course  it 
is  clear  that  these  rules  apply  to  all  examinations.  You 
should  have  a  rightly  intelligent  purpose  in  every  question, 
whether  you  are  dealing  with  your  witnesses  or  those  of 
the  adversary.  To  return  to  the  examination  in  chief,  the 
exact  understanding  of  the  real  end  of  the  introduction  of 
testimony  will  always  show  the  counsel  how  to  shun  the 
useless,  irrelevant,  or  hurtful,  and  to  avoid  pausing  too 
soon.  Now  and  then  he  must  go  further  than  he  intended 
at  first,  because  of  surprises  by  conflicts  among  his  witnesses, 
or  the  development  of  adverse  facts  in  cross-examination. 
But  he  will  always  make  out  his  case  before  he  rests,  — 
that  is,  if  his  evidential  resources  are  sufficient. 

§  388.  We  hope  that  we  have  adequately  ojiened  the 
main  subject  of  this  cliapter  to  the  young  lawyer.  In  case 
we  have  failed,  its  superior  importance  will  become  plain 
to  him  after  a  while,  if  he  has  formed  his  own  opinions  by 
observing  the  courts  for  himself,  instead  of  accepting  the 
errors  of  Quintilian  and  the  English  writers,  who  ignore 
the  fact  that  witnesses  are  generally  truthful,  self-possessed, 
and  honest,  and  who  exaggerate  the  average  achievement 


EXAMINATION   OF   THE   PARTY'S   WITNESSES.     275 

of  cross-examination.  lie  will  then  find  that  in  almost 
every  trial  the  verdict  turns  on  facts  which  have  been  dis- 
closed under  the  direct  examination  of  either  the  plaintiff's 
or  defendant's  witnesses. 

§  389.  Especially  train  yourself  to  see  the  real  bearings 
of  every  one  of  these  i)otcnt  f^icts  and  to  bring  them  out 
completely;  and  bring  them  out  in  a  way  to  strike  the 
attention  of  the  jury.  Here  comes  in  appropriately  the 
ninth  Golden  Rule  of  David  Paul  Brown  :  — 

"  Speak  to  your  witness  clearly  and  distinctly,  as  if  you 
were  awake  and  engaged  in  a  matter  of  interest ;  and 
make  him  also  speak  distinctly  and  to  your  question. 
How  can  it  be  supposed  that  the  court  and  jury  will  be 
inclined  to  listen,  when  the  only  struggle  seems  to  be 
whether  the  counsel  or  the  witness  shall  first  go  to  sleep?" 


276  CONDUCT  IN   CUUllT. 


CHAPTER  X. 

CROSS-EXAMINATION. 

§  390.  After  the  party  calling  the  witness,  whether 
he  be  plaintiff  or  defendant,  has  examined  in  chief,  the 
other  can  cross-examine.  And  he  should  at  first  consider 
whether  he  should  examine  at  all.  The  witness  may  be 
too  plain-spoken,  honest,  and  steady,  and  you  may  exactly 
understand  his  narrative  and  apprehend  nothing  but  aid  to 
the  other  side  from  any  question  that  you  may  ask.  Many 
times  it  requires  great  self-mastery,  when  the  witness  is 
turned  over  to  you,  to  announce  immediately  that  he  may 
retire.  This  announcement  should  always  be  made,  unless 
you  have  good  reason  to  expect  no  damage  or  some  benefit 
from  exercising  your  right  to  question.  I  note  that  the 
wary  veterans  of  the  courts  cross-examine  less  and  less  as 
they  grow  older  in  practice.  By  the  multitude  cross-ex- 
amination is  as  much  overrated  as  advocacy.  Sometimes 
a  great  speech  bears  down  the  adversary,  and  sometimes  a 
searching  cross-examination  turns  a  witness  inside  out  and 
shows  him  up  to  be  a  perjured  villain.  But  ordinarily 
cases  are  not  won  by  either  speaking  or  cross-examining. 
The  tyro's  conception  of  the  purpose  of  the  latter  is  that  it 
is  to  involve  every  adverse  witness  in  an  inconsistency  or 
self-contradiction.  But  you  ^y\\\  often  see  a  dozen  con- 
secutive cases  tried  wherein  no  witness  who  is  game  for 


CROSS-EXAMINATION.  277 

the  cross-examiner  makes  his  appearance.  It  is  only  the 
profligate  who  swear  falsely ;  and  if  not  the  profligate,  it 
is  the  extremely  heedless  who  make  such  glaring  blunders 
and  mistakes  as  to  destroy  the  credit  of  their  testimony. 

§  391.  These  cautions  are  placed  in  the  forefront  of 
the  chapter,  to  be  meditated  before  the  student  comes  to 
the  places  farther  on,  where  copious  use  is  made  of  the 
writings  of  Mr.  Cox  and  Mr.  Harris,  who,  while  giving 
very  valuable  instructions,  yet  hurtfully  exaggerate  what 
can  be  effected  by  cross-examination.  Mr.  Cox  says, 
"  There  is  never  a  cause  contested,  the  result  of  which  is 
not  mainly  dependent  upon  the  skill  with  which  the  advo- 
cate conducts  his  cross-examination."  ^  In  Mr.  Harris's 
Hints  it  is  implied  in  a  few  passages  that  there  are  wit- 
nesses who  cannot  be  shaken,  yet  the  bulk  of  what  he  says 
and  his  chief  stress  are  in  dealing  with  those  whose  direct 
testimony  is  overturned  by  the  questions  of  the  adverse 
counsel ;  and  consequently  the  most  careful  reader  infers 
that  he  thinks  cross-examination  can  be  made  to  do  won- 
ders in  almost  every  case.  Long  ago  Quintilian  gave  the 
subject  a  somewhat  better  treatment,^  which  has  been 
highly  applauded  by  different  English  and  American  writ- 
ers. But  the  doctrine  of  the  current  books  of  the  day 
lags  behind  the  prevailing  practice  of  the  best  lawyers. 
This  doctrine  is  that  of  Mr.  Cox  and  Mr.  Harris,  as  indi- 
cated above.  It  is  utterly  misleading  ;  for  it  is  generalized 
from  exceptional  instances,  and  takes  hardly  any  account 
of  the  kind  of  witnesses  whose  testimony  wins  more  than 
three  fourths  of  the  verdicts  in  our  courts. 

1  Advocate,  434. 

2  In  the  famous  seventh  chapter  of  the  Fifth  Book  of  Lis  Institutes. 
It  is  very  readable  in  Watson's  transhition. 


278  CONDUCT  IN  COURT. 

§  392.  The  practice  and  judgment  of  Scarlett,  the  great 
Englisli  hiwycr  who  lost  fewer  cases  that  he  ought  to  have 
won  and  won  more  that  he  ought  to  liave  lost  than  any 
other  hero  of  legal  biography,  outweigh  the  opinions  of 
the  authors  mentioned.  While  he  avoided  the  oratory 
which  draws  peojile  to  hear,  intent  as  he  was  only  upon 
the  argument  of  the  governing  facts,  it  was  his  custom 
rarely  departed  from  merely  to  probe  his  adversary's  wit- 
nesses for  further  proof  of  his  own  case,  scorning  to  waste 
his  time  in  badgering  them  by  an  examination  more  enter- 
taining to  visitors  than  effective  with  the  jury.  He  says 
in  his  Autobiography :  "  I  learned  by  much  experience 
that  the  most  useful  duty  of  an  advocate  is  the  examina- 
tion of  witnesses,  and  that  much  more  mischief  than  ben- 
efit generally  results  from  cross-examination.  I  therefore 
rarely  allowed  that  duty  to  l?e  performed  by  my  colleagues. 
I  cross-examined  in  general  very  little,  and  more  with  a 
view  to  enforce  the  facts  I  meant  to  rely  upon  than  to 
affect  the  witness's  credit,  —  for  the  most  part  a  vain 
attempt."  ^ 

§  393.  Having  premised  as  above  in  order  to  protect 
the  student  against  prevalent  errors  and  to  foresliadow  to 
him  the  main  end  of  cross-examination,  we  will  noAV  pur- 
sue our  subject.     And  we  adopt  the  plan  followed  in  the 

1  Memoir  of  Lord  Abinger,  75.  See  American  Law  Studies,  §§  1076- 
1096,  for  a  sketch  of  Lord  Abinger. 

Compare  the  following,  in  which  an  English  lawyer  of  the  present  day 
expresses  similar  views  :  "  The  object  of  cross-examination  is  not  to  pro- 
■  duce  startling  effects,  but  to  elicit  facts  which  will  support  the  theory  in- 
tended to  be  put  forward.  Sir  William  Follctt  asked  the  fewest  questions 
of  any  counsel  I  ever  knew  ;  and  I  have  heard  many  cross-examinations 
from  others  listened  to  with  rapture  from  an  admiring  client,  each  ques- 
tion of  which  has  been  destruction  to  his  case."  Sergeant  Ballantine's 
Experiences,  1st  Am.  ed.,  106. 


CROSS-EXAMINATION.  279 

last  chapter ;  that  is,  we  begin  with  average  witnesses, 
and  we  a\var(l  duo  prt)niinence  to  the  methods  most  com- 
mon in  actnal  practice.  How  to  handle  such  witnesses 
and  the  mastery  of  tlie  methods  just  mentioned  is  the  first 
and  most  important  lesson  of  all  to  the  cross-examiner. 
The  exceptional  and  unusual  will  afterwards  have  proper 
treatment  as  such,  instead  of  being  placed  in  the  foreground 
and  given  an  undue  conspicuousness. 

§  394.  Perhaps  the  most  important  thing  for  you  to 
know  is  the  character  of  the  witness.  No  man  can  tell  a 
long  story  with  complete  consistency.  An  expert  cross- 
examiner  can  detect  in  the  most  credible  testimony  trivial 
conflicts  which  do  not  weigh  much.  Witnesses  stand 
mainly  on  their  characters.  He  who  is  reckless  or  careless 
of  the  truth,  or  otherwise  bad,  is  known  as  such.  Such  a 
man  if  he  is  not  telling  the  truth  can  be  easily  put  do\\Ti 
when  he  is  given  to  the  opposite  counsel.  But  the  jury 
■will  only  be  irritated  at  a  persistent  attack  on  a  witness  of 
good  standing.  Let  the  cross-examiner  therefore  attend 
most  to  one  thing  not  mentioned  by  ^Ir.  Cox,  and  greatly 
slighted  by  Mr.  Harris,  —  the  cliaracter  of  every  witness. 

§  395.  Next  we  must  emphasize  the  importance  of 
pre\ious  acquaintance  with  the  narrative  of  the  adverse 
witnesses.  The  English  writers  noticed  above  in  this 
chapter  seem  to  assume  that  you  start  with  only  the 
knowledge  which  the  answers  to  the  direct  examination 
have  imparted.  But,  as  we  have  already  ad\nsed  you,  it 
is  your  business  to  have  found  out,  if  possible,  a  great  deal 
more.  If  others  beside  your  client  or  his  witnesses  were 
present  when  something  occurred  which  is  material  to  the 
case,  you  can  easily  learn  before  the  trial  who  are  these 
others,  and  by  prudent  inquiry  you  can  also  learn  what  will 


280  CONDUCT  IN   COURT. 

be  their  testimony.  And  thus  you  will  be  the  better  able 
to  cross-examine  properly,  making  the  adverse  witnesses 
support  your  side  without  supplying  the  omissions  which 
possibly  your  hasty  opponent  has  connnittcd.  For  instance, 
one  who  proves  an  alleged  cause  of  action  may  know  of  a 
valid  ex  post  facto  discharge,  which,  if  elicited  by  you, 
turns  him  into  a  witness  of  your  own.  If  you  are  unaware 
that  you  can  prove  this  material  fact  by  this  particular 
witness,  you  may  not  prove  it  at  all. 

This  is  a  very  incomplete  presentation  of  what  you 
should  learn  beforehand.  Before  the  chapter  is  finished 
it  will  be  apparent  to  you  that  you  ought  to  exhaust  all 
possible  means  in  order  to  be  forewarned  of  every  particu- 
lar by  which  you  may  draw  helping  proof  from  the  oppo- 
site witnesses,  or  break  them  dow^n  if  need  be.  There  are 
many  effective  cross-examinations  which  are  purely  extem- 
poraneous, but  they  will  nearly  always  be  the  better  for 
preparation  and  premeditation. 

§  396.  We  will  treat  the  subject  of  this  chapter  under 
the  following  scheme,  which  is  its  natural  classification. 
You  cross-examine  these  three  classes :  — 

1.  The  witness  whose  version  you  accept  so  far  as  it 
goes. 

2.  The  witness  whom  you  show  to  be  mistaken,  or  the 
force  of  whose  testimony  you  take  off"  by  other  means,  not 
however  attacking  his  veracity. 

3.  The  witness  whom  you  shoAV  to  be  unworthy  of 
credit. 

We  add  that  there  are  really  but  two  kinds  of  witnesses, 
the  truthful  and  the  untruthful ;  and  consequently  there 
are  at  bottom  but  two  kinds  of  cross-examination,  the 
one  intended  to  elicit  friendly  evidence,  and  the  other  to 


CROSS-EXAMINATION.  281 

show  the  unreliability  of  the  witness.  We  wish  to  impress 
it  upon  our  student  that  the  first  kind  is  in  general  use  in 
every  sort  of  case,  while  the  second  is  only  of  occasional 
importance. 

§  397.  We  now  take  up  the  witness  mentioned  in  the 
first  class  of  our  enumeration,  that  is,  he  whose  version 
you  accept  as  far  as  it  goes.  Your  objects  with  him  are 
but  two,  the  first  to  have  him  complete  what  the  direct 
examiner  has  incompletely  presented  through  such  partial 
questions  as  will  be  explained  in  a  moment,  and  the  second 
to  make  him,  if  you  can,  re-enforce  your  own  proofs. 

§  398.  The  examiner  in  chief  is  privileged  to  ask  such 
relevant  (juestions  as  he  pleases,  and  to  keep  the  witness 
from  answering  anytiiing  more.  He  generally  culls  from 
what  the  latter  knows  of  the  matter  in  controversy  such 
parts  only  as  are  favorable.  He  does  not  choose  to  help 
you  by  proving  facts  supporting  your  side.  This  suggests 
what  we  may  term  the  cue  for  your  beginning.  An  artful 
direct  examination  may  pare  down  the  testimony  of  a  by- 
stander and  have  him  to  narrate  nothing  but  that  he  saw 
the  prisoner  deal  a  fatal  blow  to  the  deceased.  If  the  in- 
vestigation stops  here  a  presumption  of  the  guilt  of  murder 
is  raised  against  the  prisoner.  But  if  your  cross-examina- 
tion draws  out  from  the  witness  that  there  was  a  justifica^ 
tion  of  the  blow,  or  that  it  was  immediately  preceded  by 
very  great  provocation,  and  other  facts  rebutting  malice, 
your  client  may  be  entitled  —  even  upon  the  testimony  of 
the  State's  witness  —  to  an  absolute  acquittjil,  or  to  a  con- 
viction of  an  offence  less  than  murder.  If  you  observe  the 
trial  of  issues  of  fact,  you  will  note  that  nearly  every  wit- 
ness is  made  to  suppress  some  important  parts  of  a  trans- 
action while  replying  to  the  direct  examiner ;  and  that 


282  CONDUCT  IN   COmiT. 

often,  where  lie  is  given  free  range  bj  being  told  to  make 
his  statement  in  his  own  way,  he  omits  some  details  whieh 
would  aid  the  other  side  should  they  be  proved. 

§  391).  To  make  the  witness  give  a  complete  narrative, 
if  what  has  been  kept  back  is  favorable  to  your  side,  may 
be  regarded  as  the  [)oint  where  cross-examination  should 
generally  begin.  Of  course  you  do  not  want  to  ask  ques- 
tions which  will  give  further  advantage  to  your  opponent. 
If  you  are  discreet  and  have  had  some  experience  you 
will  usually  be  prompted  rightly  by  one  or  more  of  the 
following  particulars. 

1.  Previous  information  as  to  the  expected  testimony  of 
the  witness.  We  always  insist  that  you  should  come  to 
the  trial  with  full  knowledge,  as  far  as  i^ossible,  of  all  the 
favorable  and  unfavorable  proof  that  can  be  made  by  the 
adverse  witnesses. 

2.  The  natural  probabilities  of  the  transaction.  We 
may  make  our  last  illustration  do  service  again.  Should 
a  witness  of  whom  you  know  nothing  merely  say  that  he 
saw  a  mortal  stroke  given,  you  may  be  almost  sure  that 
there  was  at  least  some  provocation  for  it.  And  your  ad- 
versary's brevity  of  interrogation  gives  you  good  reason  to 
suspect  that  he  recoils  from  something  which  this  \vitness 
can  tell.  Even  a  child  is  often  heard  to  question  with 
accuracy  according  to  probabilities.  They  now  and  then 
give  a  profitable  suggestion  to  the  direct  examiner,  who 
has  often  listened  to  the  witness  in  the  office.  To  the 
cross-examiner  who  has  imperfect  knowledge  or  none  at 
all  of  what  the  witness  will  testify  they  are  ftir  more 
important.  You  can  sometimes  destroy  the  credit  of  a 
witness  by  making  him  testify  to  something  grossly  im- 
probable, but  the  point  we  are  now  urging  is  that  average 


CROSS-EXAMINATION.  283 

witnesses  generally  answer  that  wliich  is  probable.  What 
appears  to  be  very  probable  you  will  generally  be  safe  to 
ask  for  in  the  cross-examination  of  an  honest  witness. 

3.  If  the  witness  is  friendly  to  your  client,  or  to  his 
friends  and  relatives,  you  may  always  hope  for  some  com- 
fort from  him.  It  is  however  to  be  noted  here  that  where 
the  opposite  witness  is  a  friend  to  your  client  everything 
that  he  will  testify  can  usually  be  ascertained  in  advance. 

4.  The  manner  of  the  witness.  While  under  direct  ex- 
amination he  may  show  a  reluctance  to  testify  against  your 
side,  or  when  you  begin  a  bias  towards  your  cause  may 
appear.  Here  you  will  nearly  always  elicit  something  of 
advantage  if  you  will  but  give  him  opportunity  to  say  it. 
As  a  rule  you  may  proceed  boldly.  But  if  lie  stands 
evenly  balanced  and  neutral,  you  will  generally  do  well  to 
ask  concerning  such  details  as  the  strong  probabilities  sug- 
gest to  be  in  your  favor.  Such  a  witness,  after  a  search- 
ing direct  examination  has  drawn  out  of  him  all  that  is 
against  you,  will  often  take  pains  to  maintain  the  appear- 
ance of  impartiality  by  telling  as  much  more  for  you  if  you 
will  lead  him  over  the  transaction  again  and  question  in 
support  of  your  theory. 

Further,  as  suggested  by  Mr.  Cox,  "  A  witness  who 
is  conscious  that  he  has  been  induced  by  the  encouraging 
examination  of  his  counsel  to  say  too  much  is  often  ready 
to  seize  the  opportunity  afforded  by  cross-examination  to 
modify  his  assertions  by  qualifications  and  explanations. 
If  you  see  this  tendency,  which  is  usually  shown  at  the 
beginning,  you  have  only  to  encourage  it  by  falling  in  with 
his  mood  and  carefully  avoiding  anything  calculated  to  make 
him  fear  the  use  to  which  you  may  put  his  admissions."  ^ 

1  Advocate,  385. 


284  CONDUCT  IN  COURT. 

§  400.  When  your  evidence  is  but  slight  and  tliat  of  the 
other  side  is  very  strong,  you  may  be  reckless  in  spurring 
his  witnesses  to  make  a  complete  statement.  Your  case 
is  so  bad  that  any  change  in  it  may  be  for  the  better.  We 
add  an  entertaining  and  apt  illustration. 

"Some  time  ago  the  writer  while  waiting  in  court 
watched  the  trial  of  a  case  where  the  plaintiff  sought  to 
recover  damages  for  a  breach  of  warranty.  The  defendant 
had  sold  him  a  horse  with  an  express  warranty  that  ho 
was  sound  and  kind  and  free  from  all  '  outs.'  The  next 
day  the  plaintiff  noticed  that  a  shoe  was  loose,  and  he 
undertook  to  drive  him  into  a  blacksmith's  shop  to  have 
him  shod,  when  the  horse  exhibited  such  violent  reluctance 
that  he  was  obliged  to  abandon  the  attempt.  Repeated 
efforts  made  it  evident  that  he  never  would  be  shod 
willingly,  and  therefore  he  was  obliged  to  sell  him.  The 
defendant  called  two  witnesses.  The  first,  an  honest, 
clean-looking  man,  testified  that  he  was  a  blacksmith,  that 
he  knew  the  horse  in  question  perfectly  well,  and  he  had 
shod  him  about  the  time  referred  to  in  the  plaintiff's  tes- 
timony. '  Did  you  have  any  difficulty  in  shoeing  him  ? ' 
asked  the  defendant's  counsel.  '  Not  the  least.  He  stood 
perfectly  quiet.  Never  had  a  horse  stand  quieter.'  The 
other,  a  venerable-looking  man,  with  a  clear,  blue  eye,  tes- 
tified that  he  had  owned  the  horse  and  that  he  was  per- 
fectly kind.  *  Did  you  ever  have  any  trouble  about  getting 
him  into  a  blacksmith's  shop  ? '  '  Well,  sir,  I  don't  remem- 
ber that  I  ever  had  occasion  to  carry  him  to  a  blacksmith's 
shop  while  I  owned  him.' 

"The  plaintiff's  counsel  evidently  thought  that  cross- 
examination  would  only  develop  this  unpleasant  testimony 
more  strongly,  so  he  let  the  witnesses  go.     The  jury  found 


CROSS-EXAMINATION.  285 

for  the  defendant.  The  next  morning,  as  the  writer  was 
sitting  in  conrt  waiting  for  a  verdict,  a  man  behind  liim, 
whom  he  recognized  as  the  bhicksniith,  leaned  forward  and 
said,  '  You  heard  that  horse  case  tried  yesterday,  did  n't 
you  ?  Well,  tliat  fellow  who  tried  the  case  for  the  plain- 
tiff (lid  n't  know  how  to  cross-examine  Avorth  a  cent.  I 
told  him  that  tlie  horse  stood  perfectly  quiet  while  I  shod 
him  ;  and  so  he  did.  I  did  n't  tell  him  that  1  had  to  hold 
him  by  the  nose  with  a  pair  of  pincers  to  make  him  stand. 
The  old  man  said  he  never  took  him  to  a  blacksmith's 
shop  while  he  had  him.  No  more  he  did.  He  had  to 
take  him  out  into  an  open  lot  and  cast  him  before  he  could 
shoe  him.'  "  ^ 

Of  course  the  plaintiff's  counsel  should  have  been  more 
searching  in  the  examination,  where  he  could  not  possibly 
have  made  his  own  case  worse. 

§  401.  We  give  another  instance.  A  man  driving  a 
buggy  collided  with  a  railway  train  at  a  crossing,  and  he 
brought  suit.  On  the  trial  a  servant  of  his  testified,  and 
told  the  facts  so  strongly  in  his  favor  that  it  seemed  use- 
less to  cross-examine.  But  the  defendant's  counsel,  who 
had  no  information  as  to  the  witness,  submitted  him  to  a 
skilful  tentative  sifting.  At  last  he  fished  it  out  that  the 
mule  which  the  master  was  driving  when  he  received  the 
injury  stated  in  his  declaration  had  once  borne  the  name 
of  Bill,  and  the  plaintiff  had  himself  changed  it  to  Staver. 
This  revealed  to  the  counsel  his  true  di^fence ;  and  acting 
on  the  hint  he  got  a  verdict  for  the  road  upon  the  ground 
that  the  plaintiff  was  driving  what  he  knew  to  be  an  un- 
safe animal. 

We  here  leave  this  part  of  the  subject  by  urging  you  to 
1  American  Law  Review,  X.  153. 


286  CONDUCT  IN  COURT. 

be  always  on  the  alert  to  prove  in  your  cross-examination 
the  whole  truth  of"  the  matter  wliich  the  select  questions 
of  your  adversary  has  garbled  to  suit  his  purpose. 

§  402.  Thu  second  sort  of  cross-examination  is  closely 
allied  to  the  first.  It  is  intended  to  weaken  the  force  of 
the  testimony  drawn  out  by  the  direct  examination  and 
prepare  the  way  for  your  own  evidence,  or  it  may  serve  to 
show  that  the  witness  is  mistaken.  We  add  some  illus- 
trations. 

§  403.  A  master  one  morning  at  breakfast  suspected 
that  there  was  poison  in  his  coffee,  and  he  immediately  ac- 
cused his  cook.  The  negro  was  thought  to  evince  manifest 
signs  of  guilt.  The  whole  family  showed  alarming  symp- 
toms, and  the  master  in  his  rage  made  the  cook  drink  all 
the  remaining  coffee.  She  fell  into  convulsions.  Of  course 
it  was  poison.  They  all  saw  in  the  coffee-grounds  frag- 
ments of  the  fatal  buckeye.  The  doomed  slave  was  hur- 
ried through  an  examination.  A  lawyer,  whose  heart  went 
out  in  yearning  love  to  the  poorest  and  lowliest  in  distress, 
inquired  into  lier  case  and  quietly  learned  all  of  the  testi- 
mony against  her.  Every  one  who  had  drunk  the  coffee 
had  sworn  to  its  unusually  bitter  taste.  It  chanced  that 
our  lawyer  had  been  lately  prescribed  by  his  dentist  a 
decoction  of  buckeye  for  toothache,  and  he  knew  that 
its  taste  was  sweet  and  not  bitter.  He  was  too  prudent 
to  proclaim  his  dissent,  for,  the  infuriated  family  learning, 
the  mob  might  have  balked  him.  He  waited  until  the 
trial,  when  he  volunteered  to  defend  the  friendless  woman. 
The  court  of  course  assigned  him  to  her  as  counsel.  He 
made  all  of  the  witnesses  for  the  State  dilate  upon  the  bit- 
terness which  they  had  testified  to  at  the  examination  ;  he 
almost  made  them  quarrel  with  him  by  appearing  to  doubt 


CROSS-EXAMINATION.  287 

what  tliey  said  on  tliis  point :  bitter-tasted  the  coffee  was ; 
tliey  had  never  tasted  anything  so  bitter.  His  only  evi- 
dence was  a  ghiss  of  fluid,  proved  by  the  dentist  —  a  man 
well  known  to  the  jury  —  to  be  a^ecoction  of  buckeye. 
The  glass  was  handed  to  the  judge;  he  tasted,  then  to 
the  jury,  and  each  of  them  took  a  timid  sip;  and  in  a  few 
minutes  there  was  an  acquittal.  The  bitterness  had  no 
doubt  been  the  result  of  negligence  with  the  coffee-pot  and 
frigiit  had  caused  the  convulsions  of  the  cook.  Witches 
however  have  been  burnt,  and  other  women  both  bond 
and  free  have  been  convicted  on  evidence  less  satisfactory 
than  that  produced  against  this  slave  before  the  magistrate, 
and,  with  sadness  be  it  said,  executed.  This  great  advo- 
cate had  often  delivered  prisoners  from  the  dread  penalty, 
and  his  name  was  in  all  men's  mouths  for  his  matchless 
tact  and  unrivalled  eloquence.  But  to  his  immortal  honor 
be  it  told  that  he  ever  counted  his  unfeed  and  unostenta- 
tious defence  of  this  helpless  slave  among  the  proudest  of 
his  victories.^ 

§  404.    The  following  is  related  by  David  Paul  Brown. 

"  A  young  and  interesting  girl,  of  respectable  position, 
had  trusted  and  been  betrayed.  She  became  a  mother.  At 
the  age  of  three  weeks  the  child  died  somewhat  suddenly. 
A  jfost  mortem  examination  took  place.  The  death  was 
said  to  have  been  produced  by  arsenic,  and  the  medical 
witnesses  strengthened  that  opinion  by  testimony.  The 
mother  was  indicted  for  murder,  and  was  tried  before 
Judge  Symser,  of  INIontgomery  County,  a  humane  and 
industrious  and  eminent  judge. 

"  In  addition  to  the  scientific  evidence  and  in  strong 

'  The  late  Hon.  A.  H.  Stephens,  to  whom  for  many  years  I  mentallj 
applied  Horace's  "  Insigne  maestis  praesidiuia  reis." 


288  CONDUCT  IN   COURT. 

corroboration  of  it,  it  was  sliown  that  a  day  or  two  before 
tlie  deatli  of  her  infant  tlie  mother  liad  sent  for  half  an 
ounce  of  arsenic  to  a  t^rocer  s ;  that  after  the  death  the 
arsenic  was  taken  to»the  grocer's  and  weighed,  and  had 
lost  twenty-four  grains  in  weight.  This  circunistancc  to- 
gether with  tlie  opinion  of  the  chemist,  presented  a  strong 
case.  Neither  was  sufficient  hi  itself,  but  together  they 
were  dangerous.  Of  course  the  cross-examination  as  to 
the  weight  was  very  rigid  and  severe.  Upon  this  particu- 
lar point  it  ran  thus  ;  — 

"  '  When  the  arsenic  was  purchased,  how  did  you  weigh 
it?' 

"  '  I  weighed  it  with  shot.' 

"  '  How  many  shot  ? ' 

*' '  Six.' 

"  '  Of  what  description  ? ' 

"  '  No.  8.' 

" '  When  it  was  returned  to  you,  did  you  weigh  it  in 
the  same  scales  ? ' 

'' '  Yes.' 

"  '  Did  you  weigh  it  with  the  same  shot  ? ' 

"  '  I  weighed  it  with  shot  of  the  same  number,  for  I  had 
no  other  numbar.' 

"  '  How  much  less  did  it  weigh  ? ' 

"  '  Twenty-four  grains  less.' 

"  It  was  plain  that  the  testimony  bore  hard  upon  the 
prisoner,  but  at  this  stage  of  the  case  the  court  adjourned. 
Immediately  my  colleague  (Mr.  Boyd)  and  myself  visited 
the  stores  of  all  the  grocers  and  took  from  various  uncut 
bags  of  No.  8  the  requisite  number  of  shot,  subjected  them 
to  weight  in  the  most  accurate  scales,  and  found  that  the 
same  number  of  tliese  different  parcels  of  shot  varied  more 


CROSS-EXAMINATION.  289 

ill  weight  than  the  difference  referred  to  as  detected  in  the 
arsenic  at  the  time  of  its  return.  The  shot,  the  grocers, 
the  apothecary,  the  scales,  \vcre  all  broug^it  before  the 
court.     They  clearly  established  the  facts  stated."  ^ 

§  405,  In  both  the  last  instances  the  testimony  of  the 
opposite  witnesses  was  fashioned  by  the  adversary  into 
such  shape  that  it  was  easily  overborne  by  counter  ca- 
dence. This  achievement  is  common  only  with  the  able 
and  experienced  lawyer.  A  large  proportion  of  cases  calls 
for  it.  The  student  should  study  and  exercise  himself  in 
this  subdivision  of  the  general  subject  of  cross-examination 
with  great  pains.  Efficiency  in  it  postulates  a  quicker 
and  deeper  insight,  greater  art  of  demonstration,  and  more 
practice  than  arc  commonly  needed  elsewhere.  You  have 
to  discern  that  what  appears  good  proof  to  everybody  else 
is  really  not  so,  and  you  must  in  addition  have  full  com- 
mand of  the  means  to  develop  its  unsatisfactoriness  so 
clearly  that  the  jury  will  cast  it  aside. 

§  406.  There  are  some  things  which  so  frequently  affect 
testimony  unfavorably  that  they  deserve  a  word  here.  We 
may  mention  bias  first.  Relatives  and  intimate  fi'iends ; 
classes  in  society  arrayed  against  one  another  in  feeling,  as 
whites  and  negroes  in  the  South,  or  members  of  different 
religious  denominations  and  political  parties  all  over  the 
country ;  the  employee  where  his  master  is  touched ;  —  we 
need  give  no  more  hints  of  the  bias  which  the  cross-exam- 
iner can  often  bring  forth  to  his  benefit.  Of  course  he  will 
not  overlook  the  warping  influence  of  interest.  And  there 
are  other  influences  which  lead  a  ^v^tness  into  errors.  He 
may  have  looked  in  a  bad  light,  or  he  may  in  even  a  good 
light  have  confounded  one  thing  or  person  with  another 

^  Forum,  II.  455. 
19 


290  CONDUCT  IN  COURT. 

similar.  The  cross-exam iuer  ought  to  make  conspicuous 
all  the  existent  causes  which  either  diminish  the  weight  of 
even  very  positive  and  confident  testimony,  or  show  it  to 
be  utterly  unreliable  although  those  who  gave  it  may  be  of 
excellent  character. 

§  407.  Our  next  stage  is  the  cross-examination  intended 
to  prove  that  a  truthful  witness  is  mistaken.  We  begin 
by  giving  some  pertinent  passages  from  Mr.  Cox  :  — 

"  A  sober  quietness,  an  expression  of  good  temper,  a 
certain  friendliness  of  look  and  manner,  which  will  be 
understood  although  it  cannot  be  described,  should  dis- 
tinguish you  when  you  rise  for  the  cross-examination  of  a 
witness  the  truth  of  whose  testimony  you  are  going  to  try, 
not  by  the  vulgar  arts  of  browbeating,  misrepresenting, 
insulting,  and  frightening  into  contradictions,  but  by  the 
more  fair,  more  honorable,  and  more  successful  if  more 
difficult  method  of  showing  him  to  be  mistaken.  You 
must  begin  with  conciliation ;  you  must  remove  the  fear 
which  the  most  truthful  witness  feels  when  about  to  be 
subjected  to  the  ordeal  of  cross-examination.  .  .  . 

"  Perhaps  it  is  unnecessary  to  inform  you  that  it  is  use- 
less to  put  to  a  witness  directly  the  question,  if  he  is  sure 
that  the  fact  was  as  he  has  stated  it.  He  will  only  be  the 
more  positive.  No  witness  will  ever  admit  that  he  could 
have  been  mistaken.  .  .  . 

"The  witness  has  detailed  an  occurrence  at  a  certain 
time  and  place,  and  it  is  your  purpose  to  show  that  he 
was  mistaken  in  some  of  the  particulars,  and  that  the  in- 
ferences he  drew  from  them  were  incorrect  or  not  justified 
by  the  facts.  Your  first  proceeding,  to  this  end,  is  to 
realize  the  scene  in  your  own  mind.  Your  fancy  must 
paint  for  you  a  picture  of  the  place,  the  persons,  the  as- 


CROSS-EXAMINATION.  291 

sociatcs.  You  then  ask  the  witness  to  repeat  his  story. 
You  note  its  congruitj  or  otlicrwise  with  tlie  eircum- 
stanees  that  accompanied  it ;  you  detect  improbabihties  or 
impossibilities.  You  see  as  he  saw,  and  you  learn  in  what 
particulars  he  saw  imperfectly  and  how  he  formed  too 
hasty  conclusions ;  how  prejudice  may  have  influenced 
him  ;  how  things  dimly  seen  were  by  the  imagination 
transformed  into  other  things  in  his  memory. 

"  How  erring  the  senses  are  and  how  much  their  im- 
pressions are  afterwards  moulded  by  the  mind,  how  very 
fallible  is  information  seemingly  the  most  assured,  it  needs 
no  extensive  observation  to  teach.  If  you  make'  inquiry 
as  to  an  occurrence  in  the  next  street  ten  minutes  after  it 
happened,  and  from  half  a  dozen  actual  spectators  of  it,  you 
will  receive  so  many  different  accounts  of  its  details,  and 
yet  each  one  is  positive  as  to  the  truth  of  his  own  narra- 
tive and  the  error  of  his  neighbor's."  ^ 

§  408.  The  doctrine  of  the  quotation  just  made  is  good 
in  the  main,. but  we  must  reflect  upon  it  in  two  or  three 
particulars.  In  the  first  place  it  is  not  our  experience  that 
a  witness  will  never  admit  that  he  could  have  been  mis- 
taken. It  is  true  that  many  of  them  are  over-positive,  but 
it  is  also  true  that  many  are  not,  and  will  frankly  con- 
fess that  they  may  be  in  error  in  material  points.  The 
extreme  of  this  class  disgusts  the  counsel  on  both  sides  by 
lack  of  certainty  as  to  any  fact.  The  cross-examiner  must 
turn  him  to  good  account  if  he  can. 

Our  next  I'emark  is  that  it  is  generally  a  blunder  for 
the  cross-examiner  to  begin  by  having  the  witness  to  re- 
peat his  story.  He  should  grasp  it  as  it  is  first  told.  He 
may,  if  it  suits  his  purpose,  pursue  its  order  iu  touching 

1  Advocate,  396-399. 


292  CONDUCT   IN   COURT. 

upon  omitted  details ;  but  generally,  if  he  is  trying  to  show 
a  mistake,  he  can  only  succeed  by  proceeding  from  his  own 
standpoint,  which  is  necessarily  different  from  that  of  your 
adversary. 

The  last  thing  we  have  to  say  is  that  the  uncertainty  of 
average  testimony  is  made  too  great.  Should  a  dozen 
good  lawyers  selected  promiscuously  hear  the  conflicting 
accounts  of  "  an  occurrence  in  the  next  street  ten  minutes 
after  it  happened,"  supposed  by  Mr.  Cox,  all  or  a  large 
majority  of  them  would  at  once  come  to  the  same  conclu- 
sion, unless  it  was  a  most  unusual  affair.  And  that  con- 
clusion would  not  necessarily  be  exactly  the  version  of  any 
particular  witness.  It  would  be  reached  according  to  cer- 
tain laws  of  human  belief,  and  it  would  generally  tally 
with  the  greatest  probability  of  the  matter.  Such  a  proba- 
bility is  always  of  importance  to  the  trial  counsel,  and  it  is 
specially  of  importance  when  he  is  cross-examining  for  the 
detection  of  mistakes. 

§  409.  Sometimes  you  may  have  the  mistake  corrected 
on  the  stand.  A  half-dozen  witnesses,  summoned  to  prove 
a  lower  value  of  a  parcel  of  land  applied  for  as  an  exemp- 
tion, were  ordered  out  of  court  when  the  trial  commenced 
at  the  instance  of  the  creditors,  who  alleged  a  higher  value. 
When  the  first  was  called  in,  he  answered  that  the  land 
was  worth  only  eight  dollars  per  acre.  On  the  cross-ex- 
ination  he  was  asked  how  did  it  compare  in  quality  and 
value  with  that  of  A,  of  B,  of  C,  and  so  on  through  a 
round  of  many  plantations  in  the  vicinity.  He  made  the 
land  in  question  a  little  better  than  the  neighboring  parcels 
inquired  about.  He  was  then  interrogated  as  to  sales  of 
these  parcels  within  the  last  four  or  five  years,  and  he  had 
to  admit  that  twelve  dollars  per  acre  was  the  lowest  price 


CROSS-EXAMINATION.  293 

that  cany  one  had  brought,  and  that  the  whole  of  the  hmd 
sold  averaged  about  fifteen  dollars  per  acre.  When  he 
answered  on  his  examination  in  chief  that  the  land  was 
worth  only  eight  dollars  per  acre,  being  a  planter,  he  gave 
as  his  reason  that  he  considered  no  lands  in  that  region 
worth  more  for  farming  purposes.  But  being  asked  by 
the  adverse  party  if  it  was  not  worth  what  it  would  com- 
mand in  the  market  he  answered  affirmatively,  and  he  ad- 
mitted that  it  would  probably  bring  eighteen  dollars  per 
acre  if  sold.  Every  one  of  the  other  witnesses  was  dealt 
with  in  the  same  way,  and  with  a  similar  result. 

It  was  at  a  time  when  witnesses  and  jurors  in  the  South 
sympathized  almost  without  exception  with  the  debtor 
whose  interest  it  was  to  undervalue  the  property  he  sought 
to  exempt,  each  one  apprehending  that  he  might  soon 
need  a  homestead  for  the  shelter  and  subsistence  of  himself 
and  his  family ;  and  the  success  of  the  cross-examination 
was  due  to  a  careful  study  of  the  different  sales  mentioned. 

§  410.  We  give  another  example  from  the  practice  of  a 
celebrated  la\w'er.  Action  for  a  cargo  of  goods  sold  on 
credit.  Plea,  that  plaintiff  had  represented  the  goods  to 
be  merchantable,  and  that  defendant,  relying  on  the  repre- 
sentation, had  bought  and  shipped  the  goods  to  a  foreign 
market,  where  he  suffered  great  damage  because  they 
proved  to  be  unmerchantable.  The  main  witness  for  the 
defence  appeared  to  be  reliable.  He  had  been  employed 
in  the  ship  that  carried  the  goods,  he  explained  how  they 
were  made  of  bad  material,  not  fit  for  use,  and  he  alone 
testified  to  the  false  representation  alleged.  The  counsel 
who  had  brought  the  action  and  prepared  the  case  said  to 
Choate,  whom  he  had  called  in  at  the  last  moment,  that  the 
witness  was  inventing.     "  No,"  replied  the  leader,  "  he  is 


294  CONDUCT  IN  COURT. 

truthful,  but  mistaken."  lie  begun  lii.s  cross-examination 
by  establishing  a  friendly  understanding.  He  made  the 
witness  report  the  appearance  of  the  seller  of  the  goods 
as  to  size,  dress,  complexion,  and  whiskers.  The  picture 
given  was  so  unlike  the  plaintiff  that  it  became  manifest 
he  had  a  different  person  in  mind.  When  he  was  made  to 
name  the  ship,  the  plaintiff  easily  proved  that  his  goods 
were  sold  two  weeks  later  and  shipped  in  another  vessel ; 
whereupon  the  defence  collapsed. 

At  the  beginning  of  the  trial,  Choate,  noticing  the  indig- 
nation which  the  defence  excited  in  the  plaintiff,  said  of 
him  to  his  associate,  "  He  is  honest,  and  we  shall  find  our 
way  out  of  the  scrape."  The  certainty  with  which  he  dis- 
cerned the  honesty  of  the  plaintiff  and  the  witness  at  the 
first  glance  made  him  see  that  the  only  possible  explana- 
tion of  their  apparent  conflict  was  that  the  latter  had  mis- 
taken a  seller  of  other  goods  for  the  former,  —  a  solution 
which  had  not  occurred  to  the  associate,  who  had  had  sole 
charge  of  the  plaintiff's  case  until  the  trial. ^ 

§  411.  We  come  now  to  what  is  practically  the  most 
effective  and  most,  widely  useful  of  all  the  different  sorts 
of  cross-examination.  In  it  you  have  the  opposite  witness 
to  prove  independent  facts  in  your  favor.  Much  of  the  in- 
terrogation considered  above  in  this  chapter  is  palpably 
prompted  by  the  answers  to  the  direct  questions  and  other 
things  occurring  in  court,  but  here  it  is  more*  necessary 
that  you  have  learned  beforehand  how  the  witness  can 
benefit  your  client.  Of  course  where  you  have  no  special 
information  you  will  attend  to  all  proper  suggestions,  such 
as  strong  probabilities,  hints  in  his  replies  to  your  adver- 
sary, and  disclosures  as  to  the  transaction  by  others.     A 

1  Neilsoii,  Memories  of  Rufus  Clioate,  35-38. 


CROSS-EXAMINATION.  295 

person  may  have  been  present  when  a  sum  of  money  was 
borrowed,  and  lie  may  also  have  seen  the  money  repaid 
afterwards  to  one  who  is  claimed  to  have  been  the  agent 
of  the  lender  to  receive  it.  If  this  witness  testifies  for  the 
plaintiff  on  the  trial  of  a  suit  for  the  money,  his  counsel 
will  ask  nothing  about  the  repayment.  He  may  not  even 
know  of  it.  But  you  have  been  told  of  it  by  your  client, 
and  you  therefore  will  draw  it  out  when  you  take  the  wit- 
ness. Possibly  the  authority  of  the  person  to  receive  the 
money  may  be  controverted,  and  you  can  prove  by  this  wit- 
ness either  the  admission  of  the  plaintiff  or  such  conduct 
on  his  part  as  shows  this  person  to  have  been  his  duly  au- 
thorized agent.  In  this  instance  your  cross-examination 
really  turns  the  witness  hito  one  of  your  own,  and  makes 
him  defeat  the  plaintiff's  case.  It  is  apparent  that  you 
would  hardly  ever  suspect  the  existence  of  this  favorable 
evidence,  had  you  no  information  but  the  answers  in  the 
direct  examination ;  and  perhaps  this  decisive  proof  for 
your  client  can  be  made  only  by  this  particular  witness. 
Thus  is  indicated  the  great  importance  of  previously  ac- 
quired knowledge  of  what  Can  be  proved  by  the  witnesses 
of  your  adversary. 

§  412.  Note  the  usual,  cross-examinations  by  good  prac- 
titioners, and  you  will  find  that  in  a  large  proportion  they 
ask  hardly  any  questions  except  such  as  are  now  our  spe- 
cial subject.  In  most  cases  they  see  intuitively  that  there 
is  no  very  distorted  statement  to  be  rectified,  and  that  there 
are  no  serious  mistakes  to  be  corrected  ;  and  they  only 
make  the  witness  re-enforce  their  side  as  to  some  detail. 
And  this  is  the  very  strongest  evidence.  As  it  comes 
from  the  adversary's  witnesses  he  cannot  discredit  it,  and 
besides  it  seems  to  the  jury  to  have  the  force  of  an  admis- 


29G  CONDUCT  IN  COURT. 

sion  against  interest.  While  tlie  kind  of  cross-examina- 
tion now  in  hand  is  the  most  important  of  all,  it  is  also 
the  most  easy.  It  requires  no  great  skill.  It  will  gener- 
ally be  well  done  if  with  patience  you  have  had  your  cli- 
ent and  his  following  to  tell  you  all  that  the  witnesses  for 
the  other  side  know  in  his  favor,  and  you  then  question 
accordingly. 

As  we  leave  this  branch  of  the  subject,  we  must  ask  you 
not  to  fall  into  the  error  of  rating  its  place  in  practice 
by  the  short  notice  it  has  received  from  us.  It  is  too  sim- 
ple to  need  much  explanation.  But  if  you  stay  at  the  bar 
you  will  have  increasing  use  for  it,  -and  after  a  while  you 
will,  as  a  general  rule,  prepare  no  other  sort  of  cross-exam- 
ination for  the  average  witness.  It  is  a  larger  field  for 
your  powers  than  appears  at  first.  The  cross-examiner 
requires  much  attention  and  assiduity  to  collect  from  the 
opposite  witnesses  all  the  help  possible.  It  is  not  only 
such  important  facts  as  we  used  for  illustration  in  the  last 
section  that  he  must  search  for.  They  would  be  over- 
looked by  only  a  very  dull  man.  He  is  to  exhaust  many 
details  ;  such  as  strengthening  one  of  his  own  witnesses 
st(mtly  attacked  by  having  the  witness  under  examination 
to  concur  with  him  in  even  a  small  matter ;  the  conduct, 
expression,  or  language  of  the  adverse  party  on  some  occa- 
sion which  the  latter  has  probably  forgotten  ;  minute  cir- 
cumstances, such  as  the  shapes  and  positions  of  marks  ;  — 
in  short,  the  details  relevant  here  are  as  varied  and  extensive 
as  the  entire  possibilities  of  proof.  In  addition  to  the  gift 
of  common  sense,  quick  insight  into  persons  and  affairs, 
great  familiarity  with  the  case,  and  profound  meditation  of 
the  testimony,  are  needed  in  order  to  qualify  one  to  bring 
out  from  the  adverse  witnesses  all  the  laro;e  and  trivial 


CROSS-EXAMINATION.  297 

facts  wliicli  establish  his  case  without  at  the  same  time 
making  the  other  side  stronger. 

§  413.  In  the  foregoing  we  have  been  mainly  treating 
witnesses  of  whose  probable  answers  to  the  direct  exam- 
iner and  what  they  can  testify  in  your  behalf  you  have  at 
least  some  information  before  the  trial.  But  now  and 
then  you  are  confronted  with  a  witness  of  whom  you  have 
learned  nothing  except  from  his  testimony  in  chief.  We 
must  give  you  a  word  of  counsel  how  to  handle  him. 
You  must  first  decide  according  to  all  the  ex  tempore  sug- 
gestions—  the  character  of  his  statement,  hi^  manner,  the 
manifest  probabilities,  the  nature  of  the  evidence  on  both 
sides  already  out  or  which  is  still  to  come,  etc.  —  whether 
you  will  have  him  complete  what  you  deem  is  a  fragmen- 
tary statement,  or  examine  to  take  oft'  the  force  of  his  tes- 
timony in  other  respects.^  You  should  next  make  trial  of 
him  to  sec  if  he  can  be  of  other  use.  If  you  have  attended 
closely  to  his  answers  to  the  adversary,  you  may  have 
caught  glimpses  of  favorable  facts  which  you  can  now 
draw  from  him.  And  you  may  feel  for  others.  An  ex- 
perienced lawyer  shows  great  artfulness  in  these  matters. 
He  will  often  elicit  nothing  of  account,  and  yet  the  skill 
with  which  he  fishes  for  the  favorable  and  avoids  the  ad- 
verse gains  credit  for  his  cause. 

§  414.  If  the  unknown  witness  is  found  to  be  frank  and 
honest,  you  can  easily  drain  him  of  all  support.  But  sup- 
pose he  is  otherwise,  and  you  have  cause  to  believe  him 
unworthy  of  credit.  You  can  quickly  test  him.  There 
are  witnesses,  perhaps  on  both  sides,  who  have  given  truth- 

1  As  to  this  subject  of  cross-examination  without  previous  prepara- 
tion, see  ante,  §§  399,  410.  It  finds  much  iUustration  in  the  rest  of  the 
chapter. 


298  CONDUCT   IN   COURT. 

ful  versions  of  the  same  matter  vvliich  he  has  not  lieard, 
and  lie  may  tell  a  difFcrent  tale ;  or  he  may  be  made  in 
advance  to  contradict  strong  evidence  which  you  hold  in 
resen'e ;  or  he  may  be  led  into  the  utterance  of  gross 
improbabilities,  especially  if  he  manifests  a  strong  adverse 
bias.  You  must  not  too  hastily  decide  that  he  is  lying. 
If  you  make  a  serious  blunder,  you  will  have  the  jury  to 
disagree  with  you  and  rally  to  his  defence.  In  most  cases 
you  are  guided  to  the  truth  by  the  most  palpable  revela- 
tions, by  answers  of  some  one  present  to  the  inquiries  of 
yourself  or  a^ociate  as  to  the  character  of  the  witness,  or 
by  an  instinct  which  becomes  almost  infallible  in  practice. 
When  you  have  properly  settled  it  that  he  is  not  veracious, 
of  course  he  belongs  to  the  next  class  in  order. 

§  415.  We  have  now  gone  through  with  the  cross-ex- 
amination of  the  witness  whose  character  you  do  not  at- 
tack. Whether  you  have  him  to  supply,  as  to  a  particular 
affair  inquired  about,  what  your  adversary  has  avoided ;  or 
you  blunt  the  edge  of  his  answers  in  chief  by  showing  him 
to  be  mistaken,  or  in  other  ways  we  have  mentioned ;  or 
you  lead  him  to  establish  some  of  the  material  allegations 
of  your  pleadings,  —  it  has  the  same  object  and  really  the 
same  quality.  You  make  an  ally  of  the  witness,  and  you 
make  him  —  to  use  the  phrase  of  Scarlett  quoted  above  — 
enforce  the  facts  on  which  you  rely ;  and  this  enforce- 
ment is,  according  to  the  great  authority  just  named,  the 
practitioner's  main  and  most  usual  business  with  the 
opposed  witnesses.  If  he  generally  succeeds  in  attaining 
the  objects  pointed  out  in  this  section,  he  is  really  an  effi- 
cient and  able  cross-examiner,  even  though  he  never  tries 
to  make  a  witness  contradict  himself. 

§  416.   We  have  reached  the  point  where  we  must  take 


CROSS-EXAMINATION.  299 

up  the  witness  whom  you  intend  to  discredit.  While  this 
is  the  most  unimportant  brancli  of  the  subject,  it  yet  re- 
quires nmch  space  for  complete  treatment.  We  begin  with 
the  questions  which  prepare  for  impeachment.  Here  you 
ask  him  if  lie  has  not  said  so  and  so  at  a  certain  time  and 
place  to  a  particular  person  whom  you  name.  This  state- 
ment which  you  ask  if  he  has  made  is  one  materially  dif- 
ferent from  that  in  his  direct  examination.  Should  he 
deny  making  the  statement  you  will  contradict  him  by  the 
person  to  whom  it  was  made.  If  the  latter  is  of  good 
standing,  the  jury  will  generally  disregard  the  testimony  of 
the  witness.  But  when  you  cross-examine  as  to  the  extra- 
curial  statement  the  witness  may  admit  that  he  made  it. 
He  thus  confesses  that  he  has  told  one  lie  concerning  the 
matter  under  investigation,  and  the  jury  ask  themselves 
how  can  they  know  that  they  have  not  heard  him  tell 
others  in  the  rest  of  his  testimony.  As  a  general  rule  you 
should  question  him  no  further  on  this  particular  point 
after  you  have  elicited  his  admission.  Whatever  explana^ 
tion  he  can  make  of  the  inconsistency,  leave  to  your  adver- 
sary to  produce  in  the  re-examination,  when  it  will  not 
usually  have  one  half  of  the  weight  with  the  jury  Avhich  it 
would  have  had  if  you  had  given  opportunity  to  make  it. 
The  blunder  which  we  have  just  cautioned  against  is  often 
committed,  especially  by  inexperienced  counsel. 

§  417.  As  to  the  attack  mentioned  in  the  last  section, 
we  must  note  that  to  be  effective  it  should  be  in  a  material 
matter  and  the  difference  insisted  upon  in  the  two  ac- 
counts must  also  be  material.  We  must  further  urge  on 
you  that  in  the  preparation  of  the  case  you  should  take 
pains  to  find  out  as  well  as  you  can  what  will  be  the  testi- 
mony of  every  adverse  witness,  and  be  always  on  the  look- 


300  CONDUCT   IN   COURT. 

out  for  contradictory  statcincnts  made  to  people  of  good 
repute.  Even  if  your  preparation  has  failed  to  detect  any 
such,  by  keeping  an  eye  about  you  during  the  trial  you  may 
at  the  very  last  moment  catch  your  prey  in  the  net. 

I  have  noted  that  the  longer  the  final  trial  of  an  exciting 
case  is  deferred,  the  more  the  resources  of  contradiction 
multiply.  The  influence,  canvassing,  and  entreaty  of  the 
parties  and  their  friends  cause  many  of  the  reports  given 
at  first  to  be  modified  in  their  interest.  It  ought  to  be 
your  concern  to  make  as  nmcli  as  possible  for  your  side 
out  of  this  tendency.  And  there  should  be  on  your  part 
well-directed  efforts  to  collect  the  available  counter  testi- 
mony, from  the  beginning  of  the  preparation  until  the  call 
of  the  last  witness  against  you. 

§  418.  There  are  often  frequent  trials  of  the  same  case, 
or  of  issues  involving  substantially  the  same  facts,  wherein 
a  particular  witness  on  the  other  side  may  have  testified 
several  times,  or  lie  may  have  been  examined  by  commis- 
sion. Whenever  his  testimony  varies  decidedly  from  that 
which  he  has  previously  given  and  it  is  your  cue  to  attack 
his  credibility,  you  should  never  ftiil  to  take  advantage  of 
it.  For  such  a  contradiction  is  of  more  moment  because 
he  has  sworn  to  both  statements.  It  is  much  more  easi? 
to  take  off  the  usual  effect  of  an  inconsistent  statement 
hastily  made  than  that  of  one  which  is  deliberately  given 
under  oath.  I  have  once  or  twice  heard  the  latter  satis- 
factorily explained,  but  such  occurrences  are  very  rare. 

§  419.  The  next  mode  of  attack  is  to  draw  the  witness 
into  such  statements  as  will  be  disproved  by  the  other 
testimony.  You  may  put  him  on  some  important  detail  in 
irreconcilable  oppugnancy  with  all  the  fellows  of  his  own 
side,  as  well  as  with  your  own  evidence.     This  is  a  more 


CROSS-EXAMINATION.  301 

subtile  task  tlian  the  qvicstioiiing  which  lays  the  founda- 
tiou  for  proof  of  counter  statements  made  out  of  court. 
You  must  d;sci[)line  yourself  to  carry  in  your  head,  with 
such  distinctness  as  to  make  mentally  an  accurate  compari- 
son, both  the  direct  answers  of  tlie  particular  witness  and 
all  the  other  testimony,  —  that  which  is  already  out,  and 
that  which  may  reasonably  be  expected  from  both  sides. 
If  he  is  reckless  and  defiant  in  his  partisanship,  you  need 
not  be  very  careful  to  veil  your  purpose.  But  if  he  is 
shrewd  and  vigilant  to  shun  your  snares,  you  must  take 
pains  not  to  wake  his  caution.  I  have  noted  that  when 
you  wish  to  touch  on  many  different  details  you  fare  bet- 
ter if  you  adopt  rapid  and  disconnected  interrogation,  — 
where  you  will  often  be  seriously  disadvantaged  if  you 
have  to  wait  upon  a  long-hand  reporter,  —  and  that  when 
you  need  to  expand  a  particular  matter  very  fully  it  is 
generally  well  to  fall  in  with  the  witness  and  seemingly 
accept  his  narrative.  And  whatever  course  you  take,  and 
whether  the  range  permitted  you  be  wide  or  contracted, 
do  not  overlook  a  single  opportunity,  and  be  unwearied  in 
exhausting  all  possibilities  of  placing  him  in  opposition  to 
the  other  testimony. 

We  have  noted  that  the  particular  subject  of  this  sec- 
tion is  not  sufficiently  attended  to  in  practice.  The 
counsel  show  that  they  have  some  conception  of  its  impor- 
tance, but  usually  they  do  not  thoroughly  measure  the 
witness  in  hand  by  the  other  testimony,  and  consequently 
their  development  of  his  disagreement  with  it  falls  far 
short  of  what  is  achievable. 

§  420.  We  must  in*this  place  observe  upon  the  duty  of 
the  cross-examiner  to  unfold  conflicts  in  the  adverse  testi- 
mony.    Quintiliau    says :    "  Fortune    sometimes  favors  us 


302  CONDUCT  IN  COURT. 

by  causing  something  to  be  said  by  a  witness  that  is  incon- 
sistent with  tlie  rest  of  his  evidence  ;  and  sometimes  (as 
more  frequently  lia})pens)  she  makes  one  witness  say  what 
is  at  variance  with  the  evidence  of  another ;  but  an  inge- 
nious mode  of  interrogation  will  often  lead  methodically  to 
that  which  is  so  frequently  the  effect  of  chance."  ^  To 
throw  doubt  on  the  adversary's  evidence  is  often  your 
entire  resource ;  as  where  you  rely  on  the  general  issue  for 
the  defence — especially  in  criminal  cases  — and  also  where 
you  are  for  the  plaintiff  who  has  cast  the  onus  incontro- 
vertibly  on  the  defendant  and  the  latter  is  trying  to  shift  it. 
In  all  of  these  instances,  if  you  cause  the  adverse  witnesses 
to  collide  upon  a  cardinal  point  it  may  prove  decisive  in 
your  favor.  The  same  accurate  understanding  and  colla- 
tion of  the  testimony  as  we  saw  to  be  required  when  you 
would  have  a  particular  narrative  disproved  by  the  other 
evidence  are  likewise  necessary  here.  And  the  discrepancy 
must  be  as  patiently  and  satisfactorily  made  out. 

§  421.  Next  to  actual  information  as  to  Avhat  the 
testimony  of  the  different  witnesses  will  be,  the  most  effect- 
ive means  at  your  command  to  make  them  contradict  one 
another  is  to  have  them  ordered  out  of  court.  It  is  a 
privilege  which  need  not  be  always  exercised.  I  have 
noted  that  it  is  usually  well  to  exercise  it  when  you  are 
suddenly  called  to  defend  some  exciting  charge  of  crime. 
The  question  should  be  well  considered  and  settled  before 
you  announce  that  you  are  ready  to  try. 
.  The  following  is  an  instance  of  an  important  difference 
developed  by  the  means  just  mentioned.  The  State  was 
striving  to  identify  a  particular  defendant  as  one  of  the 
perpetrators   of  a   deed  of  violence  by  tracking  a  horse 

1  Institutes,  V.  7.  29. 


CROSS-EXAMINATION.  303 

alleged  to  be  that  which  he  usually  rode  from  the  place 
where  the  crime  was  committed  to  his  dwelling,  which 
was  a  few  miles  distant.  The  counsel  for  the  defence  ac- 
quainted himself  well  with  the  road  which  the  horse  was 
reported  to  have  gone.  About  a  mile  from  the  scene  of 
the  violence  the  passengers  had  made  a  new  road,  which 
turned  about  in  the  open  fields  and  woods  to  avoid  some 
broken  places  in  the  highway,  and  which  returned  to  the 
latter  about  half  a  mile  from  the  point  of  divergence. 
Two  witnesses  were  to  testify  to  tracking  the  horse.  They 
were  ordered  out  of  court,  and  afterwards,  on  examination, 
one  tracked  the  horse  along  the  old  road,  the  other  along 
the  new  road,  and  both  swore  that  they  were  together  at 
the  time. 

§  422.  The  better  the  character  of  the  witnesses  for 
truth  and  coolness,  the  less  you  will  make  by  ordering  them 
out  of  court.  If  they  come  from  their  confinement  to  the 
stand  and  one  by  one  tell  in  the  main  the  same  tale,  varying 
only  in  those  common  discrepancies  which  are  but  proof 
that  there  has  been  no  collusion  between  them,  the  efiect 
is  very  damaging  upon  your  case.  You  have  beeu  caught 
in  your  o^^^l  trap.  You  may  note  that  generally  a  false 
alibi  is  detected  and  a  true  one  established  by  having  the 
supporting  witnesses  ordered  out  of  court. 

§  423.  You  may  not  be  able  to  lead  the  witness  into  a 
conflict  with  any  other  ^vitness,  and  yet  you  may  commit 
him  to  assertions  which  will  finally  prove  the  ruin  of  his 
credit. 

A.  lawyer  undertook  the  defence  of  a  negro  charged 
with  the  murder  of  a  white  girl,  who  had  been  found  dead, 
the  signs  on  her  person  indicating  that  she  had  beeu 
ravished.     The  evidence  against  the  defendant  was  purely 


304  CONDUCT  IN   COURT. 

circumstantial,  but  it  was  tliought  conclusive  by  the  peo- 
ple. The  lawyer  had  his  own  reasons  for  believing  his 
client  innocent,  and  that  the  guilty  man  was  somewhere 
in  the  crowd  of  witnesses  who  eagerly  pressed  forward  to 
danni  the  cowering  prisoner.  There  had  somehow  been 
two  examinations  of  the  defendant  by  a  magistrate,  and 
the  prosecutor  had  testified  in  each  to  tracing  the  tracks  of 
a  man,  discovered  near  the  dead  body  the  day  after  it  had 
been  found,  to  a  place  where  a  sudden  rain  put  them  out, 
in  a  road  about  a  mile  from  the  house  of  the  prisoner,  — 
this  road  running  on  by  the  house  mentioned,  —  and  that 
he  thought  it  useless  to  go  further,  as  he  then  knew  who 
the  murderer  was,  meaning  the  prisoner  of  course.  This 
opinion  was  not  legal  testimony,  but  the  lawyer  decided 
not  to  object  to  it,  and  to  draw  it  out  himself  if  it  did  not 
come  out  otherwise.  We  need  not  tell  all  of  the  incidents 
of  the  trial.  The  prosecutor  was  the  principal  witness  to 
identify  the  tracks  mentioned  as  those  of  the  prisoner.  The 
former  at  the  trial,  while  under  direct  examination,  blurted 
out  the  declaration  that  when  the  rain  came  up  he  was  then 
sure  who  the  murderer  was.  When  turned  over  for  cross- 
examination,  the  prisoner's  counsel  began  by  repeating  his 
statement  that  at  the  time  and  place  mentioned  he  had  be- 
come convinced  of  the  guilt  of  the  prisoner,  to  which  the  wit- 
ness with  some  show  of  insolence  assented.  He  was  then 
calmly  reminded  that  at  that  particular  time  the  prisoner 
had  not  been  apprehended  wearing  boots  which  the  State 
claimed  to  fit  the  tracks,  nor  had  anybody  then  detected  on 
his  clothing  what  were  alleged  to  be  blood-stains ;  and  the 
witness  was  asked  to  state  all  of  the  reasons  which  he  had  at 
the  time  the  rain  began  for  believing  the  prisoner  to  be  the 
man  who  had  killed  the  girl.     He  gave  only  three  ;  to  wit. 


CROSS-EXAMINATION.  305 

the  course  of  the  tracks  from  the  body  towards  tlie  house 
of  the  defendant ;  a  conversation  which  he  had  testified  to 
having  had  with  the  prisoner  about  the  girl  a  few  months 
before  her  death  ;  and  information  which  had  been  given 
him  about  tiie  same  time  by  her  mother  of  a  visit  of  the 
prisoner  to  her  house  at  night.  He  did  not  give  all  of 
these  reasons  at  once,  and  readily.  He  had  to  be  quizzed 
a  long  time.  It  was  the  purpose  of  the  cross-examiner  to 
have  this  sifting  atten<led  to.  He  forced  upon  the  witness 
ample  time  to  reflect,  wlio  after  many  trials  gave  up  and 
said  he  knew  that  he  had  no  other  than  the  three  reasons 
just  enumerated.  Now  for  the  lawyer's  aim  in  thus  com- 
mitting the  witness  so  irrevocably  to  the  three  reasons. 
He  made  such  a  stout  defence  of  an  alibi,  and  he  had 
entangled  many  of  the  witnesses  for  the  State  into  such 
serious  contradictions  of  their  testimony  reported  by  the 
magistrate,  that,  when  he  rested,  the  State  replied  with  a 
great  array  of  new  evidence.  The  brother  of  the  prose- 
cutor testified  to  a  threat  which  he  heard  the  prisoner 
make  against  the  deceased  a  few  days  before  her  death. 
In  the  cross-examination  the  prisoner's  counsel,  veiling  his 
design  under  a  throng  of  questions,  got  him  to  answer 
that  he  had  communicated  this  to  the  prosecutor  before 
the  killing.  The  prosecutor's  daughter  testified  to  having 
stolen  upon  a  clandestine  meeting  of  the  prisoner  and  the 
girl  a  very  short  while  before  the  killing.  She  was  led 
so  quietly  to  tell  that  she  had  immediately  communicated 
this  to  her  father  that  no  one  noticed  it.  At  last  came  the 
prosecutor's  wife,  who  testified  that  the  deceased,  in  an 
interview  with  the  witness  the  day  before  her  death,  told 
her  that  she  expected  to  meet  the  prisoner  on  the  morrow 
in  the  field  where  she  was  found  dead.     She  was  made 

20 


3UG  CONDUCT   IxN    COURT. 

likewise  to  say  that  she  had  told  this  to  her  husband  the 
day  before  the  rain.  And  thus  was  the  prosecutor  de- 
stroyed ;  for  this  rebutting  evidence  of  his  own  family 
gave  him  many  more  and  stronger  reasons  for  believing 
the  guilt  of  the  prisoner,  than  the  three  he  had  stated  as 
all  that  he  had  when  allowed  full  time  for  recollection. 
In  fact,  this  new  evidence,  if  true,  showed  that  the  prose- 
cutor should  have  lost  no  time  in  searching  for  and  follow- 
ing up  tracks,  and  looking  for  blood-stains,  as  he  did,  and 
tiiat  he  ought  to  have  known  the  prisoner  to  be  the  doer 
of  the  crime  as  soon  as  he  heard  it  had  been  committed. 
That  all  this  evidence  which  pointed  at  the  prisoner  so 
unmistakably  had  not  been  produced  on  either  of  the 
examinations  in  which  every  one  of  these  witnesses  had 
testified,  not  only  generated  the  conviction  that  the  pris- 
oner was  falsely  accused  at  the  instigation  of  the  prose- 
cutor, but  it  re-enforeed  the  attack  upon  his  credit  as  a 
witness  a  hundred-fold.  Nobody,  not  even  the  judge  nor 
the  jury  nor  sharp-sighted  counsel  for  the  prosecution,  was 
aware  of  the  successful  attack  on  this  witness  until  it  was 
clearly  shown  in  the  argument,  although  many  had  been 
staggered  because  the  last  evidence  of  the  State  had  not 
been  introduced  at  first.  The  poor  man's  life  was  saved, 
and  the  upshot  was  that  the  prosecutor's  brother  was 
detected  as  the  murderer. 

The  demolition  of  the  chief  witness  for  the  State  was 
achieved  because  the  prisoner's  counsel  knew  his  ground 
from  having  premeditated  it ;  and  suspecting  strongly,  as 
he  did,  the  prosecutor  of  at  least  knowing  who  the  mur- 
derer was,  it  was  no  very  shrewd  guess  of  his  that  the 
State  would  reply  to  his  strong  defence  with  other  evi- 
dence inconsistent  with  the  first,  and  that  the  prosecutor 


CROSS-EXAMINATION.  807 

would  have  to  furnish  it.  And  this  hiwyer,  from  conning 
the  report  of  the  magistrates,  saw  that  he  could  involve 
the  adverse  witnesses  in  many  contradictions,  and  he  had 
a  presentiment  that  the  prosecutor  and  his  family  would 
return  to  the  stand  and  be  found  an  easy  prey. 

It  is  to  be  especially  noted  that  some  of  the  testimony 
was  technically  illegal.  A  lawyer  often  injures  his  case 
by  stopping  an  adverse  witness  of  bad  character  from 
giving  incompetent  testimony. 

§  424.  You  must  sometimes  try  to  entrap  the  witness 
into  such  self-contradiction  or  oppugnancy  to  known  facts 
as  will  induce  the  belief  that  his  testimony  is  feigned.  The 
following  extract  from  Mr.  Cox  is  full  of  good  instruction 
upon  this  sort  of  cross-examination  :  -r- 

"  Open  gently,  mildly  ;  do  not  appear  to  doubt  him 
[the  witness]  ;  go  at  once  to  the  marrow  of  the  story  he 
has  told,  as  if  you  were  not  afraid  of  it ;  make  him  repeat 
it ;  then  carry  him  a^vay  to  some  distant  and  collateral 
topic,  and  try  his  memory  upon  that,  so  as  to  divert  his 
thoughts  from  the  main  object  of  your  inquiry  and  prevent 
his  seeing  the  connection  between  the  tale  he  has  told  and 
the  questions  you  are  about  to  put  to  him.  Then  by  slow 
approaches  bring  him  back  to  the  main  circumstances  by 
the  investigation  of  which  it  is  that  you  purpose  to  show 
the  falsity  of  the  story.  ... 

"  As  a  specimen  of  this  sort  of  cross-examination  .  .  . 
we  may  name  an  instance  that  fell  within  our  own 
experience. 

"  In  a  case  of  affiliation  of  a  bastard  child  the  mother  had 
sworn  distinctly  and  positively  to  the  person  of  the  father, 
and  to  the  time  and  place  of  their  ac(piaintance,  fixed  as 
usual  at  precisely  the  p'oper  period  before  the  birth  of  the 


308  CONDUCT   IN  COURT. 

cliild.  In  this  case  the  time  sworn  to  was  the  middle  of 
May,  and  the  place  the  putative  father's  garden.  For  an 
hour  slic  endured  the  strictest  cross-examination  that  in- 
genuity could  suggest.  She  was  not  to  be  shaken  in  any 
material  part  of  her  story  ;  she  had  learned  it  well,  and 
with  the  persistence  that  makes  women  such  very  difficult 
witnesses  to  defeat  she  adhered  to  it.  It  suddenly  oc- 
curred to  us  that  she  might  be  thrown  off  her  guard  by  a 
question  for  which  she  was  not  likely  to  be  prepared,  and  the 
examination  proceeded  thus :  '  You  say  you  walked  in  the 
garden  with  Mr.  M.  ?'  'Yes.'  'Before  your  connection 
with  him  ? '  '  Yes.'  '  More  than  once  ? '  '  Yes  ;  several 
times.'  'Did  you  do  so  afterwards?'  'No.'  'Never 
once?'  'No.'  'Is  there  fruit  in  the  garden?'  'Yes.' 
'  I  suppose  that  you  were  not  allowed  to  pick  any  ? '  '0, 
yes ;  he  used  to  give  me  some.'  '  What  fruit  ? '  '  Cur- 
rants and  raspberries.'  '  Ripe  ? '  '  Yes.'  This  was 
enough.  She  was  detected  at  once.  The  alleged  inter- 
course was  in  the  middle  of  May.  Currants  and  rasp- 
berries are  not  ripe  till  June. 

"  This  instance  will  illustrate  our  meaning  better  than 
any  verbal  description  of  it.  In  this  case  the  woman's 
whole  story  was  untrue.  She  had  fallen  in  with  the  sug- 
gestion about  fruit,  to  strengthen,  as  she  thought,  the 
account  of  the  garden  ;  but  she  did  not  perceive  the  drift 
of  the  questions,  and  consequently  had  not  sufficient  self- 
command  to  reflect  that  fruit  is  not  "ripe  in  May. 

§  425.  "  This  will  serve  as  an  illustration  of  the  manner 
in  which  the  most  acute  witness  may  be  detected  in  a  lie. 
But  patience  in  the  pursuit  is  always  necessary.  You  may 
be  baffled  again  and  again,  but  be  careful  never  to  let  it  be 
seen  that  you  are  baffled.     Glide  qwictly  into  another  track 


CllOSS-EXAMlNATION.  309 

and  try  anotlicr  approach  ;  you  can  scarcely  fail  of  success 
at  last.     ISo  false  witness  is  armed  at  (id  points."  ^ 

§  426.  "  If  however  you  adopt  the  other  course,  [that 
is,  to  show  that  you  suspect  him  at  the  tirst,^]  and  instead 
of  surprising  the  witness  into  the  betrayal  of  his  falsehood 
you  resolve  to  bring  it  out  of  him  by  a  bold  and  open 
attack,  —  to  aive  him,  as  it  were,  into  honesty,  —  aspect 
and  voice  must  express  your  consciousness  of  his  perjury 
and  your  resolve  to  have  the  truth.  A  stern,  determined 
fixing  of  your  eye  upon  his  will  often  suffice  to  unnerve 
him,  and  it  will  certainly  help  you  to  assure  yourself 
whether  your  suspicions  are  just  or  unjust.  It  may  be 
stated  as  a  general  rule,  that  a  witness  who  is  lying  will 
hot  look  you  boldly  and  fully  in  the  face  with  a  steady 
gaze  ;  his  eye  quivers  and  turns  away,  is  cast  down  or 
wanders  restlessly  about.  On  the  contrary,  the  witness 
who  is  speaking  the  truth  or  what  he  believes  to  be  the 
truth  ^^^ll  meet  your  gaze,  however  timidly,  w^ll  look  at 
you  when  he  answers  your  questions,  and  will  let  you  look 
into  his  eyes.  .  .  . 

•  §  427.  "  Thus  assured,  and  pursuing  your  plan  of  bold 
attack,  there  needs  to  be  no  circumlocution,  no  grad- 
ual approaching,  .  .  .  but  go  straightway  to  your  object, 
plunging  him  at  once  into  the  story  you  are  questioning. 
Make  him  repeat  it  slowly.  '  It  will  often  be  that,  under 
the  discomposure  of  your  detection  of  his  purpose,  he 
will  directly  vary  from  his  former  statement ;  and  if  he  does 
so  in  material  points  which  are  undoubtedly  sufficient  to 
discredit  him,  it  will  usually  be  the  more  prudent  course  to 
leave  him  there  self-condemned,  instead  of  continuing  the 
examination,  lest  you  should  give  him  time  to  rally  and 
1  Advocate,  400,  401.  2  i^,id,^  400,  4OI. 


310  CONDUCT  IN  COURT. 

l)erliaps  to  contrive  a  story  that  will  explain  away  his 
contradictions.  If  however  his  lesson  is  well  learned,  and 
he  repeats  the  narrative  very  nearly  as  at  first,  you  will 
have  to  try  another  course,  which  will  tax  your  ingenuity 
and  patience. 

§  428.  "  Procure  from  him  in  detail,  and  let  his  words 
be  taken  down,  the  particulars  of  his  story,  and  then  ques- 
tion him  as  to  associated  circumstances  upon  which  he  is 
not  likely  to  have  prepared  himself,  and  to  answer  which, 
therefore,  he  must  draw  on  his  invention  at  the  instant. 
Some  little  ingenuity  will  be  necessary  on  your  part  after 
surveying  his  story  to  select  the  tveakest  points  for  your 
experiment,  and  to  suggest  the  circumstances  least  likely 
to  have  been  pre-arranged.  Having  obtained  his  answers, 
permit  to  him  no  pause,  but  instantly  take  him  to  a  new 
subject ;  lead  his  thoughts  away  altogether  from  the  mat- 
ter of  your  main  topic.  The  more  irrelevant  your  queries, 
the  better;  your  purpose  is  to  occupy  his  mind  with  a 
new  train  of  ideas.  Conduct  him  to  different  places  and 
persons  and  events.  Then,  in  the  very  midst  of  your 
questionings,  when  his  mind  is  the  most  remote  from  the 
subject,  when  he  is  expecting  the  next  question  to  relate 
to  the  one  that  has  gone  before,  suddenly  return  to  your 
first  point,  not  repeating  the  main  story,  (for  this  having 
been  well  learned  will  probably  be  repeated  as  before,)  but 
to  those  circumstances  associated  with  it  upon  which  you 
had  surprised  him  into  invention  on  the  moment.  It  is 
most  probable  that  after  such  a  diversion  of  his  thoughts 
he  will  have  forgotten  what  his  answers  were,  what  were 
the  fictions  with  which  he  had  filled  up  the  accessories  of 
his  false  narrative  ;  and  having  no  leisure  allowed  to  him 
for  reflection,  he  will  now  give  a  different  account  of  the 


CROSS-EXAMINATION.  311 

circumstances  and  so  betray  his  falseliood.  Of  all  the  arts 
of  cross-examination  there  is  none  so  efficient  as  this  for 
the  detection  of  a  lie. 

§  429.  "  Another  excellent  plan  is  to  take  the  witness 
through  his  story,  but  not  in  the  same  order  of  incidents 
in  which  he  told  it.  Dislocate  his  train  of  ideas,  and  you 
put  him  out ;  you  disturb  his  memory  of  his  lesson.  Thus, 
begin  your  cross-examination  at  the  middle  of  his  narra- 
tive, then  jump  to  one  end,  then  to  some  other  part  the 
most  remote  from  the  subject  of  the  previous  question. 
If  he  is  telling  the  truth,  this  will  not  confuse  him,  be- 
cause he  speaks  from  impressions  upon  his  mind  ;  but 
if  he  is  lying,  he  will  be  perplexed  and  will  betray  himself, 
for  speaking  from  the  memory  only,  which  acts  by  asso- 
ciation, you  disturb  that  association  and  his  invention 
breaks  down. 

§  430.  "  When  you  are  satisfied  that  the  witness  is 
drawing  upon  his  invention  there  is  no  more  certain  pro- 
cess of  detection  than  a  rapid  fire  of  questions.  Give  him 
no  pause  between  them  ;  no  breathing-place,  no  time  to 
rally.  J^ew  minds  are  sufficiently  self-possessed  to  main- 
tain a  consistent  story  under  such  a  catechising.  If  there 
be  a  pause  or  a  hesitation  in  the  answer,  you  thereby  lay 
bare  a  falsehood.  The  witness  is  conscious  that  he  dares 
not  stop  to  think  whether  the  answer  he  is  about  to  give 
will  be  consistent  with  the  answers  already  given,  and  he 
is  betrayed  into  contradictions.  In  this  process  it  is  neces- 
sary to  fix  him  to  time,  and  place,  and  names.  '  You  heard 
him  say  so  ? '  '  When  ? '  '  Where  ? '  '  Who  were  present  ? ' 
*  Name  them.'  '  Name  one  of  them.'  Such  a  string  of 
questions  following  one  upon  the  other  as  fast  as  the  an- 
swer is  given,  will  frequently  confound  the  most  audacious. 


312  CONDUCT  IN   COURT. 

Fit  names  and  times  and  places  are  not  readily  invented, 
or  if  invented  not  readily  remembered."  ^ 

§  431.  In  the  passage  just  quoted  a  wide  range  of  ex- 
amination is  counselled.  But  we  nmst  say  that  the  range 
should  be  still  wider.  Besides  aiming  to  lead  the  witness 
into  self-contradictions,  he  should  be  pressed  hard  in  every 
quarter  accessible  where  he  can  be  drawn  into  contrariety 
to  credible  testimony,  or  be  made  to  forget  or  deny  prob- 
able or  proved  facts  favorable  to  the  other  side,  or  his  gross 
bias  or  partisanship  for  the  party  calling  him,  or  his  strong 
hostility  to  the  other  be  shown.  We  may  illustrate  by  the 
famous  cross-examination  of  jNlajocchi  in  the  trial  of  Queen 
Caroline.  Being  called  to  prove  that  the  Queen  had  com- 
mitted adultery  with  her  menial  Bergami,  he  had  testified 
to  a  great  many  circumstances  which,  if  true,  established 
her  guilt.  He  had  narrated  incidents  and  details  extend- 
ing through  a  long  time  and  occurring  in  many  places.  In 
his  cross-examination  Brougham  asked  as  to  a  vast  num- 
ber of  contemporary  surroundings  to  which  the  witness 
had  not  testified.  IMajocchi  would  often  profess  not  to 
remember.  One  desiring  to  master  the  subject  will  do 
well  to  begin  with  that  part  of  Brougham's  speech  which 
is  devoted  to  this  witness.^  That  will  give  him  a  good 
understanding  of  the  crucial  interrogation  and  of  the  self- 
destroying  answers ;  and  it  will  profit  the  student  to  see 
how  a  most  able  cross-examination  was  most  ably  set 
forth  and  commented  upon  and  enforced  in  argument. 

1  Advocate,  405-408.  This  quotation  is  perhaps  the  best  passage  in 
the  author's  chapters  on  the  examination  of  the  witnesses.  But  we  call 
attention  to  it  for  the  further  reason  that  it  vividly  presents  what  English 
writers  seem  to  tliink  are  the  qualities  of  the  cross-examiner  most  demanded 
by  the  needs  of  practice. 

2  Trial  of  Queen  Caroline,  (New  York,  1874,)  Vol.  II.  x^p.  35-46. 


CROSS-EXAMINATION.  313 

§  432.  The  cross-examination,  by  Williams,  of  Louise 
Demon t,  in  the  same  trial,  is  also  a  model.  She  was  more 
self-possessed  and  ready  than  Majocchi,  and  her  demolition 
was  not  so  apparent.  Her  sifting  was  systematic  and  ex- 
haustive. And  the  way  in  which  she  was  led  into  contra- 
diction of  her  letters  and  then  into  a  grossly  improbable 
explanation  of  them,  and  the  cogent  comment  made  upon 
it  afterwards  by  Williams,  merit  special  attention.^ 

§  433.  We  must  remind  our  reader  again,  that  such 
supereminent  triumphs  as  the  two  just  mentioned  are  but 
seldom  achieved.  They. occur  far  less  frequently  than  great 
speeches.  All  of  us  who  attend  the  courts  are  now  and 
then  delighted  with  a  burst  of  eloquence,  but  we  may 
haunt  them  for  years  and  never  hear  a  cross-examination 
approach  even  faintly  to  either  that  of  Majocchi  orDemont. 
Still,  the  lawyer  must  be  prepared  for  such  opportunity. 
Now  and  then  a  tremendous  tide  of  favoring  feeling  or 
great  partisan  influence  is  at  work  for  the  wrong  side  of 
the  case,  and  fast  and  unscrupulous  witnesses,  propped  up 
by  the  popularity  and  strength  of  the  preferred  party,  come 
into  the  box  wdth  helping  fictions.  As  the  people  who 
hear  wish  the  adversaiy  to  succeed,  they  eagerly  swallow 
the  testimony.  Here  the  cross-examiner  must  leave  no 
stone  unturned  to  make  the  untruth  palpable.  To  do 
this  he  must  be  self-composed,  patient,  and  exhaustive  'in 
his  interrogation,  aiming  so  clearly  to  demonstrate  the 
improbability  of  the  adverse  testimony  that,  if  he  lose  the 
verdict,  a  right-minded  court  will  never  refuse  him  a  new 
trial.     No  better  examples  to  train  him  for  this  great  con- 

1  See  Trial  of  Queen  Caroline,  Vol.  I.  pp.  338  ct  scq.,  for  the  cross- 
examination,  and  Vol.  II.  pp.  117-120,  for  the  coninieut  of  Williams  on 
the  testimony. 


314  CONDUCT   IN   COURT. 

suiiuiKitiv)!!  cuii  be  found  in  the  whole  range  of  judicial 
proceedings  than  these  two  cross-examinations :  the  one  of 
Majocchi  and  the  other  of  Demont.  We  regret  that  we 
have  not  the  space  to  give  thcni  fully.  The  student  sliould 
however  con  for  himself  what  Campbell  called  "two  great 
masterpieces  of  forensic  skill,"  familiarizing  himself  with 
the  questions  and  answers  in  the  full  report  now  accessible 
to  American  readers.^ 

§  434.  iSlaj ocelli  and  Demont  represent  witnesses  whom 
cross-examination  shows  inferentially,  as  it  were,  to  be 
false.  But  there  are  still  others,  who  belong  to  a  much 
less  numerous  class,  where  perjury  is  palpably  detected. 
And  as  the  lawyer  should  be  ready  to  deal  with  such  reck- 
less swearers,  we  will  give  instances  where  some  were 
brought  to  grief. 

§  435.    The  first  is  told  by  Judge  Sharswood. 

"  He  [a  gentleman  of  the  bar  of  Philadelphia]  allowed 
nothing  that  occurred  in  a  cause  to  disturb  or  surprise 
him.  On  an  occasion,  in  one  of  the  neighboring  counties 
the  circuit  of  which  it  w^as  his  custom  to  ride,  he  was  try- 
ing a  cause  on  a  bond,  when  a  witness  for  the  defendant 
was  introduced,  who  testified  that  the  defendant  had  taken 
the  amount  of  the  bond,  which  was  quite  a  large  sum,  from 
his  residence  to  that  of  the  obligee,  a  distance  of  several 
miles,  and  paid  him  in  silver  in  his  presence.  The  evi- 
dence was  totally  unexpected  ;  his  clients  were  orphan 
children  ;  all  their  fortune  was  staked  on  this  case.  The 
mtness  had  not  yet  committed  himself  as  to  how  the 
money  was  carried.  Without  any  discomposure,  without 
lifting  his  eyes  or  pen  from  paper,  he  made  on  the  margin 
of  his  notes  of  trial  a  calculation  of  what  that  amount  in 

1  Trial  of  Queen  Caroline,  New  York,  1874. 


CROSS-EXAMINATION.  315 

silver  would  weigh,  and  when  it  came  his  turn  to  cross- 
examine  calmly  proceeded  to  make  the  witness  repeat  his 
testimony  step  by  step,  —  when,  where,  how,  and  how  far 
the  money  was  carried,  —  and  then  asked  him  if  he  knew 
how  much  that  sum  of  money  weighed,  and  upon  naming 
the  amount  so  confounded  the  witness,  party,  and  counsel 
engaged  for  the  defendant  that  the  defence  was  at  once 
abandoned  and  a  verdict  for  the  plaintiff  rendered  on  the 
spot."  1 

§  436.   Here  is  a  second  instance. 

The  State,  endeavoring  to  identify  the  prisoners  indicted 
as  the  offenders,  introduced  a  witness  who  testified  that  he 
met,  a  moment  after  the  assaidt  and  battery  charged  had 
been  committed,  a  party  of  men  coming  away  from  the 
place,  with  whom  he  held  a  brief  parley  in  the  dark.  He 
further  swore  that  these  men  were  mounted  and  disguised ; 
that  it  was  very  dark,  there  being  no  moon  ;  that  he  could 
recognize  none  of  them,  but  that  he  did  recognize  the  rid- 
ing horse  of  a  particular  one  of  the  defendants.  On  cross- 
examination  he  was  made  to  say  that  he  was  only  in  front 
of  the  horse  and  about  five  or  six  feet  off,  and  to  repeat 
his  previous  account  of  the  extreme  darkness  of  the  night. 
He  was  then  drawn  on  to  make  some  absurd  statements 
of  his  power  on  such  a  night  to  distinguish  a  brown  horse 
from  a  bay  and  a  dark  broAvn  from  a  medium  brown,  when 
in  one  of  his  replies  he  spoke  of  the  defendant's  mare. 
He  was  immediately  asked  if  he  knew  that  night  it  was  a 
mare,  and  he  said,  "  Yes."  He  was  next  asked,  as  he 
stood  at  her  head,  how  he  could  tell  that  the  animal  was 
a  mare.  The  question  dumfounded  him.  He  looked 
down   and  burst  into  tears.      His  perjury  had  been  ap- 

1   Legal  Ethics.  11. 


316  CONDUCT   IN   COURT. 

parent  from  the  moment  of  his  saying  that  lie  could  dis- 
tinguish a  dark  brown  from  a  medium  brown  that  night, 
but  he  was  not  checked  and  gravelled  in  his  voluble  lies 
until  the  last  question  left  him  no  cover  or  loophole. 

§  437.  Such  blunders  of  witnesses  as  we  have  detailed 
in  the  last  two  instances  will  sometimes  be  overlooked. 
All  the  associate  counsel  should  keep  their  attention  fixed 
upon  the  answers.  The  quiet  listener  will  often  detect 
that  which  escapes  the  examiner. 

§  438.  We  will  now  add  two  instances  from  the  prac- 
tice of  Daniel  Webster. 

The  Kennistons  were  of  respectable  name.  Goodridge 
accused  them  of  having  assaulted  him  with  a  pistol  and 
robbed  him.  There  were  facts,  such  as  the  gold  of  Good- 
ridge having  been  found  in  their  cellar,  which  supported 
the  charge.  A  friend  of  the  defendants  had  told  Web- 
ster that  Goodridge's  wound  was  on  the  inside  ends 
of  the  fingers  of  the  left  hand,  and  had  suggested  that 
the  prosecutor  was  feigning,  in  order  to  avoid  the  pay- 
ment of  his  debts.  This  theory  of  the  defence  Webster 
kept  to  himself  He  gives  the  following  account  of  the 
trial. 

"  Taking  all  the  circumstances  together,  the  gold  which 
was  found  and  identified,  the  tracks  and  so  on,  the  evidence 
was  pretty  strong  against  the  accused.  I  had  in  my  mind 
all  the  while  what  Perkins  had  said  to  me  about  shooting 
the  inside  of  the  hand;  and  after  the  government  had 
examined  Goodridge  for  three  hours  and  made  him  tell  a 
pretty  straight  story,  they  .  .  .  gave  him  to  me  to  cross- 
examine.  Then  for  the  first  time  in  the  history  of  the 
case,  the  line  of  defence  developed  itself  in  the  first  ques- 
tion which  was  asked.     I  never  saw  a  man's  color  come 


CROSS-EXAMINATION.  317 

and  go  so  quickly  as  when  I  asked  him  to  explain  how  it 
was  that  he  was  wounded  on  the  inside  of  the  hand.  He 
faltered,  and  showed  the  most  unmistakable  signs  of  guilt. 
.  .  .  The  Kennistons  were  triumphantly  acquitted,  and 
Goodridge  fled.  Everybody  saw  at  once  that  he  had  per- 
petrated this  robbery  on  himself.' '  ^ 

§  439.  Brown  had  taken  from  Bramble  a  bond  to  pay 
the  former  one  hundred  dollars  a.  year  for  life.  After  a 
Avhile  Bramble  began  to  persuade  Brown  to  cancel  the 
bond  for  a  definite  sum  of  money,  but  Brown  would  always 
refuse.  It  was  Bramble's  custom  to  indorse  the  annual 
payments  on  the  bond.  At  the  next  payment  Bramble 
indorsed,  not  one  hundred,  but  one  thousand  dollars  as  paid 
on  the  bond,  adding  ''in  full  consideration  of  and  cancelling 
this  bond."  Brown,  who  could  not  read  or  write,  signed 
the  indorsement  by  making  his  mark,  and  the  bond  was 
kept  by  him.  When  Brown  demanded  payment  at  the 
end  of  the  following  year,  the  other  contended  that  he 
owed  nothing,  and  asserted  that  the  last  entry  on  the  bond 
showed  that  the  same  was  satisfied.  Bramble  was  rich 
and  influential,  and  Brown  was  a  poor  shoemaker,  and 
the  latter  consulted  Jeremiah  Mason,  but  he  had  been  em- 
ployed by  Bramble.  So  he  went  with  the  foregoing  narra- 
tive of  his  case  to  Webster,  who  put  faith  in  him  and 
brought  his  suit.  "  The  case  came  on  at  Exeter.  .  .  . 
It  created  gi'eat  excitement.  Bramble's  friends  were 
incensed  at  the  charge  of  forgery ;  but  Brown  too,  in  his 
humble  way,  had  his  friends."  ^  The  following  is  Web- 
ster's narrative. 

"  I  never  in  my  life  was  more  badly  prepared  for  a 
case.     There  was  no  evidence  for  Brown,  and  what  to  do 

1  Harvey's  Reminiscences,  100,  101.  2  JbjtJ.^  59. 


318  CONDUCT   IN   COURT. 

I  did  not  know.  But  I  had  begun  tlic  suit  and  was  go- 
ing to  run  for  luck,  perfectly  satisfied  that  I  was  right. 
There  were  Bramble  and  his  friends  with  Mason ;  and 
poor  Brown  only  had  his  counsel.  And  Mason  began  to 
sneer  a  little,  saying,  '  That  is  a  foolish  case.' 

"  Well,  a  person  named  Lovejoy  was  then  living  in 
Portsmouth ;  and  where  there  is  a  great  deal  of  litigation 
.  .  .  there  will  always  be  one  person  of  a  kind  not  easily 
described, — a  shrewd  man  mixed  up  in  all  sorts  of  affairs. 
Lovejoy  was  a  man  of  this  kind,  and  he  was  a  witness  in 
nearly  all  the  cases  ever  tried  in  that  section.  He  was 
imperturbable  and  never  could  be  shaken  in  his  testimony. 
Call  Lovejoy,  and  he  would  swear  that  he  was  present  on 
such  an  occasion  ;  and  he  seemed  to  live  by  giving  evi- 
dence in  this  way.  I  was  getting  a  little  anxious.  ...  I 
was  going  to  attempt  to  prove  that  Brown  had  been 
appealed  to  by  Bramble  for  years  to  give  up  his  bond  and 
take  a  sum  of  money,  and  that  he  had  always  stoutly 
refused;  that  he  had  no  use  for  money  and  had  never 
been  in  the  receipt  of  money  ;  and  that  he  could  not 
write  and  was  easily  imposed  upon.  But  although  I 
felt  that  I  was  right,  I  began  to  fear  that  I  should  lose 
the  case. 

"  A  Portsmouth  man  who  believed  in  Brown's  story 
came  to  me  just  before  the  case  was  called,  and  whispered 
in  my  ear,  '  I  saw  Lovejoy  talking  with  Bramble  just  now 
in  the  entry,  and  he  took  a  paper  from  him.'  I  thanked 
the  man,  told  him  it  was  a  pretty  important  thing  to 
know,  and  asked  him  to  say  nothing  about  it.  In  the 
course  of  the  trial  Mr.  IVIason  called  Lovejoy,  and  he  .  .  . 
testified  that,  some  eight  or  ten  montlis  before,  he  was  in 
Brown's   shop,  and  that   Brown  mended  his  shoes.  .  .  . 


I 


CROSS-EXAMINATION.  319 

He  naturally  fell  into  conversation  about  the  bond,  and  he 
said  to  Brown,  '  Bramble  wants  to  get  back  the  bond  ;  why 
don't  you  sell  it  to  him? '  'O,'  said  Brown,  '  I  have;  he 
wanted  me  to  do  it,  and  as  life  is  uncertain  I  thought  I 
might  as  well  take  the  thousand  dollars.'  He  went  on  to 
testify  that  the  '  said  Brown  '  told  him  so  and  so  ;  and 
when  he  expressed  himself  in  that  way  I  knew  he  was 
being  prompted  from  a  written  paper.  The  expression 
was  an  unnatural  one  for  a  man  to  use  in  ordinary  conver- 
sation. It  occurred  to  me  in  an  instant  that  Bramble  had 
given  Lovejoy  a  paper  on  which  was  set  down  what  he 
wanted  him  to  testify.  There  sat  Mason  full  of  assur- 
ance, and  for  a  moment  I  hesitated.  Now,  I  thought,  I 
will  make  a  spoon  or  spoil  a  horn.  I  took  the  pen  from 
behind  my  ear,  drew  myself  up,  and  marched  outside  of 
the  box  to  the  witness  stand.  '  Sir,'  I  exclaimed  to  Love- 
joy,  'give  me  the  paper  from  which  you  are  testifying.' 
In  an  instant  he  pulled  it  out  of  his  pocket ;  but  before  he 
had  it  quite  out,  he  hesitated  and  attempted  to  put  it  back. 
I  seized  it  in  triumph.  There  was  his  testimony  in  Bram- 
ble's handwriting." 

The  end  was  that  the  case  was  settled  on  terms  dictated 
by  Webster.^ 

§  440.  In  conclusion  as  to  the  witness  whom  you  would 
show  to  be  untruthful,  we  say  that  you  will  but  seldom 
succeed  save  by  having  him  to  evince  great  partisanship,  or 
to  narrate  manifest  improbabilities.  And  as  this  particular 
sort  of  cross-examination  is  so  much  more  frequently  used 
with  effect  than  any  other  belonging  to  our  present  divis- 
ion of  the  subject,  it  calls  for  a  proportional  attention  from 
the  student. 

^  Harvey's  Reminiscences,  67-73. 


320  CONDUCT  IN  COURT. 

§  441.  We  have  now  made  a  distinct  and  tolerably 
complete  outline  of  the  process  of  cross-examination.  We 
give  here  the  following  summary  of  its  real  objects  :  — 

1.  The  rectification  of  the  narrative,  which  is  incomplete 
because  the  direct  examiner  has  kept  to  chosen  questions, 
that  is,  if  you  have  good  reason  to  anticipate  that  this 
rectification  will  prove  advantageous. 

To  elicit  circumstances  that  show  the  witness  biased,  or 
unable  to  have  understood  accurately,  or  to  be  mistaken, 
without  taxing  him  with  falsehood,  in  order  to  smooth  the 
way  for  your  own  evidence  or  to  overturn  the  foundations 
of  his  testimony,  also  belongs  to  this  head. 

2.  To  make  him  prove  facts  material  to  your  case. 

3.  To  prepare  for  impeachment,  or  to  convict  of  great 
recklessness  and  partisanship  or  of  actual  perjury. 

This  is  the  core  and  essence  of  the  subject.  But  we 
must  now  treat  of  some  particulars  for  which  we  could  not 
find  an  earlier  place. 

§  442.  We  begin  with  considering  the  proper  manner 
of  the  cross-examiner.  Inexperienced  counsel  often  seem 
to  resent  the  appearance  of  witnesses  for  the  adversary; 
and  the  demeanor  of  those  of  experience  is  usually  too 
hostile,  often  driving  an  honest  and  impartial  man  to 
taking  up  a  stubborn  resistance.  Quintilian  says :  "  It 
has  been  advantageous  on  certain  occasions  not  to  press 
too  severely  on  men  of  probity  and  modesty;  for  those 
who  would  have  fought  against  a  determined  assailant  are 
softened  by  gentle  treatment."  ^  Perhaps  we  should  say 
that  ordinarily  the  best  behavior  towards  an  adverse  wit- 
ness is  a  friendly  one,  not  however  strained  into  evident 
hypocrisy.     Mr.    Harris   counsels   wisely   when   he   says : 

1  Institutes,  V.  7.  27. 


CROSS-EXAMINATION.  321 

"It  will  be  clear  that  to  cross-examine  with  anything 
like  success  the  most  thoroughly  good  temper  should  be 
preserved.  An  ill-tempered  advocate  would  be  something 
like  a  jibbing  horse,  he  would  do  everything  but  go  along 
smoothly."  ^ 

We  have  noted  the  few  instances  when  you  may  manifest 
indignation  at  unmistakable  perjury.  But  you  must  even 
then  be  on  your  guard  not  to  lose  your  self-command. 

§  443.  We  must  say  a  few  words  as  to  interrogation. 
It  is  the  privilege  of  the  cross-examiner  to  ask  leading 
questions,  and  often  you  cannot  fully  sift  the  witness  with- 
out exercising  it.  You  must  remember,  however,  that 
sometimes  a  question  which  discloses  your  real  purpose 
will  be  imprudent.  We  will  add  an  instructive  passage 
from  Mr.  Harris,  which  shows  how  you  should  do  when 
dealing  with  a  hostile  witness  :  — 

"  One  of  the  greatest  cross-examiners  of  our  day  advised 
a  pupil  in  cross-examining  a  hostile  witness  upon  a  point 
that  was  material  to  put  ten  unimportant  questions  to  one 
that  is  important,  and  wdien  he  put  the  important  one  to 
put  it  as  though  it  were  the  most  unimportant  of  all.  .  .  . 
'  And  when,'  said  the  learned  gentleman,  '  you  have  once 
got  the  answer  you  want,  leave  it.  Divert  the  mind  of  the 
witness  by  some  other  question  of  no  relevancy  at  all.' 
There  is  no  occasion  to  emphasize  an  answer  while  the 
witness  is  in  the  box,  if  the  question  be  properly  put. 
The  time  for  that  wall  come  wdien  you  sum  up  or  reply. 
If  the  witness  sees  from  your  manner  that  he  has  said 
something  which  is  detrimental  to  the  party  for  whom  he 
has  given  the  evidence  —  unless  he  be  an  honest  witness  — 
he  will  endeavor  to  qualify  it,  and  perhaps  he  will  succeed 

^  Hints  on  Advocacy,  49. 
21 


322  CONDUCT  IN  COURT. 

in  neutralizing  its  effect.  If  you  leave  it  alone,  it  may  be 
that  your  opponent  may  not  perceive  its  full  effect  until 
it  has  passed  into  the  region  of  comment.  Nothing  is 
more  unskilful  than  repeating  a  question  when  you  have 
obtained  a  favorable  answer."  ^ 

§  444.  But  it  is  often  needful  that  you  take  pains  to  be 
intelligible.  Thus  Quintilian  says  :  "  Questions  should  be 
put,  as  far  as  possible,  in  familiar  language,  that  the  per- 
son under  examination,  who  is  very  frequently  illiterate, 
may  clearly  understand,  or  at  least  may  not  pretend  that  he 
does  not  understiind ;  an  artifice  which  throws  no  small 
damp  on  the  spirit  of  the  examiner."  ^ 

§  445.  You  should  avoid  proving  new  facts  for  the 
adversary,  or  bringing  out  those  already  proved  in  a  more 
potent  form.  You  will  often  see  the  case  of  the  adversary, 
which  was  very  weak  when  he  ended  his  examination  in 
chief,  made  invincible  by  the  cross-examiner.  We  may 
term  this  a  puerile  blunder. 

§  446.  You  must  shun  that  which  is  very  damaging  to 
your  case.  As  Mr.  Harris  says,  "  It  is  a  good  rule  in 
cross-examining  a  witness  never  to  ask  a  question  the  an- 
swer to  which  may  be  adverse  to  your  case.  Nothing  but 
absolute  necessity  should  induce  a  departure  from  this. 
There  are  so  many  ways  of  framing  a  question  or  a 
series  of  questions  that  it  would  disclose  a  poverty  of 
ingenuity  indeed  if  you  asked  one  that  might  involve  the 
fate  of  your  client."  ^ 

In  the  tentative  interrogation  which  you  must  often 
employ  upon  an  unknown  witness,  you  cannot  expect  all 
his  answers   to   be  effective  for  you.     Those   which   are 

1  Hints  on  Advocacy,  57,  58.  2  Institutes,  V.  7.  31. 

3  Hints  on  Advocacy,  56. 


CROSS-EXAMINATION.  323 

immaterial  will  not  hurt,  but  those  which  are  seriously 
unfavorable  fall  upon  your  case  with  double  force  because 
you  cause  them  yourself. 

§  447.  And  you  should  not  touch  upon  new  matter 
which  the  re-examiner  may  make  good  use  of,  but  which 
would  have  been  closed  to  him  but  for  you.  We  take  an 
excellent  illustration  of  this  rule  from  Mr.  Harris  :  — 

"  You  may  get  in  a  conversation  that  may  be  fatal  to 
your  case.  Suppose  the  question  to  be  the  contents  of 
a  lost  will.  A  legatee  under  it  gives  the  following  evi- 
dence :  '  I  remember  the  fact  of  the  testator  making  his 
will.  I  saw  him  waiting  it  and  I  read  it  at  the  time.  I 
was  left  a  thousand  pounds  by  it  and  my  two  brothers 
were  left  severally  the  same  amount.  I  last  saw  the  will 
two  months  ago.'  Now  it  might  be  that  the  whole  case 
depended  upon  the  accuracy  of  the  witness's  memory,  or 
upon  that  coupled  with  his  credibility.  Plaintiff's  coun- 
sel is  desirous  of  showing  that  on  the  day  the  will  was 
made  the  witness  went  for  a  doctor,  and  told  him  at  that 
time  the  contents  of  the  will.  If  this  statement  could  be 
given  and  it  were  identical  with  that  made  in  the  witness- 
box  years  after,  it  is  clear  that  it  would  go  a  long  way  to 
establish  the  accuracy  of  the  witness's  memory,  as  well  as 
his  credibility.  But  it  is  not  admissible  as  evidence  in 
chief.  A  question  however  in  cross-examination  would 
admit  every  word. 

"Nor  does  the  danger  cease  wiien  this  witness  leaves 
the  box.  The  doctor,  a  witness  to  the  will,  may  be  called. 
He  may  not  have  read  it,  but  an  inadvertent  question  may 
enable  him  to  say  what  the  last  witness  told  him  on  the 
occasion  in  question."  ^ 

^  Hints  on  Advocacy,  48. 


324  CONDUCT  IN  COURT. 

We  may  suggest  that  you  should  learn  from  the  current 
manuals  of  Evidence  what  are  the  topics  which  can  be 
opened  only  in  cross-examination,  and  after  that  your  dis- 
cretion must  guide  you  in  using  or  abandoning  the  special 
privileges. 

§  448.  "  There  is  another  danger  not  to  be  lightly  re- 
garded, and  that  is  of  persisting  in  pressing  a  question 
upon  a  reluctant  witness.  When  you  find  a  witness  un- 
Malling  to  give  the  evidence  you  seek,  and  you  have  drawn 
him  as  near  to  the  point  as  there  is  any  hope  of  his  being 
drawn  or  driven,  it  is  always  dangerous  to  attempt  to  urge 
him  further.  If  you  have  nearly  got  an  affirmative  and 
you  press  him  overmuch,  you  may  irritate  him  into  giving 
a  direct  negative."^ 

"  It  may  be  remarked  .  .  .  that  good  generalship  may 
be  often  shown  in  skilfully  availing  yourself  of  the  silence 
of  a  witness.  A  refusal  to  answer  or  an  evasion  of  your 
question  will  frequently  be  more  serviceable  to  you  than 
his  words.  On  such  occasions,  when  assured  of  the  advan- 
tage with  which  you  can  employ  in  your  argument  to  the 
jury  that  reluctance  to  reply,  you  will  not  continue  to  urge 
him  after  having  plied  him  fairly ;  but  having  done  enough 
to  satisfy  the  court  that  he  can  say  something  more  if  he 
pleases  you  should  withdraw,  and  then  you  may  suggest 
such  inferences  from  his  silence  as  may  be  most  advanta- 
geous to  your  cause.  It  is  one  of  the  most  frequent  and 
fatal  faults  of  young  advocates  that  they  ivill  have  an 
answer  in  words  to  every  question  they  put,  forgetting 
that  the  answer  may  be  injurious,  while  the  silence  may 
be  more  than  suggestive  of  all  that  it  is  their  design  to 
elicit."  2 

1  Hints  on  Advocacy,  48.  ^  Cox,  Advocate,  387,  388. 


CROSS-EXAMINATION.  325 

§  449.  Quintilian  thus  notices  another  point :  "  All 
questioning  ought  to  be  extremely  circumspect,  because  a 
witness  often  utters  smart  repartees  in  answer  to  the  advo- 
cates, and  is  thus  regarded  with  a  highly  favorable  feeling 
by  the  audience  in  general."  ^ 

The  cross-examiner  sometimes  draws  great  discomfiture 
on  himself.  The  following  is  told  of  Choate,  and  it  may 
serve  as  an  illustration  to  both  this  and  the  last  section. 
It  "  occurred  in  the  trial  of  a  question  of  salvage.  It  was 
the  case  of  The  Missouri,  an  American  vessel  stranded  on 
the  coast  of  Sumatra,  with  specie  on  board.  The  master 
of  the  stranded  vessel,  one  Dixey,  and  Pitman,  the  master 
of  the  vessel  that  came  to  her  aid,  agreed  together  to  em- 
bezzle the  greater  part  of  the  specie,  and  pretend  that  they 
had  been  robbed  of  it  by  the  Malays.  Mr.  Choate  was 
cross-examining  Dixey  very  closely  to  get  out  of  him  the 
exact  time  and  nature  of  the  agreement.  The  witness  said 
that  Pitman  proposed  the  scheme,  and  that  he  objected  to 
it,  among  other  reasons,  as  dangerous.  To  which  he  said 
Pitman  made  a  suggestion  intended  to  satisfy  him.  Mr. 
Choate  insisted  on  knowing  what  that  suggestion  was. 
The  witness  was  loath  to  give  it.  Mr.  Choate  was  per- 
emptory, and  the  scene  became  interesting.  '  Well,'  said 
Dixey  at  last,  'if  you  must  know,  he  said  that  if  any 
trouble  came  of  it  we  could  have  Rufus  Choate  to  defend 
us,  and  he  would  get  us  off  if  we  were  caught  with  the 
money  in  our  boots.'  It  was  several  minutes  before  the 
court  could  go  on  with  the  business."^ 

§  450.  Mr.  Cox  gives  advice  which  it  would  be  well 
for  the  cross-examiner  always  to  follow,  if  he  could,  in 
these  exigencies.     He  says  :  "  When  such  a  contretemps 

1  Institutes,  V.  7.  31.  "^  Brown's  Life,  3d  ed.,  451. 


326  CONDUCT  IN  COURT. 

occurs  it  is  most  important  that  you  should  not  appear  to 
be  taken  by  surprise.  Let  neither  countenance,  nor  tone 
of  voice,  nor  expression  of  face,  show  to  the  spectators 
that  you  are  conscious  of  being  taken  aback.  If  tliey 
laugh,  be  not  vexed ;  if  others  exhibit  surprise,  be  as  calm 
and  appear  as  satisfied  as  if  you  had  expected  it.  Thus 
you  will  repel  the  force  of  the  blow,  for  seeing  that  you 
are  not  perplexed  by  it  the  audience  begin  to  suppose  it 
not  to  be  so  important  as  they  deemed  it  to  be,  or  they 
give  you  credit  for  some  profounder  purpose  than  is  appar- 
ent, or  that  you  are  prepared  with  a  contradiction  or  an 
explanation.  Sometimes,  indeed,  where  the  blow  has  been 
more  than  usually  staggering,  it  may  not  be  bad  policy  to 
weaken  its  force  by  openly  making  light  of  it,  repeating 
it,  taking  a  note  of  it,  or  appending  a  joke  to  it.  At  no 
time  is  self-command  more  requisite  to  an  advocate  than 
at  such  a  moment,  and  never  is  the  contrast  between  expe- 
rience and  inexperience,  the  prudent  and  the  injudicious, 
more  palpably  exhibited."  ^ 

§  451.  We  close  this  long  chapter  by  giving  the  perti- 
nent Golden  RiUes  of  David  Paul  Brown.  They  are  not 
quite  as  excellent  as  those  of  the  same  author  for  the  ex- 
amination in  chief.  Still  they  deserve  attention,  as  being 
the  production  of  a  very  able  nisi  prius  lawyer  of  great 
experience  and  rare  culture.  The  energy,  freshness,  and 
epigrammatic  polish  of  all  the  Golden  Rules,  both  those 
for  direct  and  those  for  cross-examination,  with  their 
practical  wisdom,  are  in  most  grateful  contrast  with  the 
ordinary  dulness  of  law-writing. 

§  452,  "  First.  Except  in  indifferent  matters  never  take 
your  eye  from  that  of  the  witness.     This  is  a  channel  of 

1  Advocate,  388. 


CROSS-EXAMINATION.  327 

communication  from  mind  to  mind  the  loss  of  which  noth- 
ing can  compensate. 

'  Truth,  falscliood,  hatred,  anger,  scoru,  despair, 
And  all  the  passions  —  all  the  soul  is  there.' 

"Second.  Be  not  regardless,  either,  of  the  voice  of  the 
witness;  next  to  the  eye,  this  is  perhaps  the  best  inter- 
preter of  his  mind.  The  very  design  to  screen  conscience 
from  crime,  the  mental  reservation  of  thQ  witness,  is  often 
manifested  in  the  tone  or  accent,  or  emphasis  of  the  voice. 
For  instance,  it  becoming  important  to  know  that  the  wit- 
ness was  at  the  corner  of  Sixth  and  Chestnut  Streets  at  a 
certain  time,  the  question  is  asked,  '  Were  you  at  the 
corner  of  Sixth  and  Chestnut  Streets  at  six  o'clock  ? '  A 
frank  witness  would  answer,  perhaps,  '  I  was  near  there.' 
But  a  witness  who  is  desirous  to  conceal  the  fact  and  de- 
feat your  object,  (speaking  to  the  letter  rather  than  to  the 
spirit  of  the  inquiry,)  answers,  '  No ' ;  although  he  may 
have  been  within  a  stone's  throw  of  the  place,  or  at  the 
very  place,  within  ten  minutes  of  the  time.  The  common 
answer  of  such  a  witness  would  be,  '  I  was  not  at  the 
corner  at  six  o'clock.'  Emphasis  upon  both  words  plainly 
implies  a  mental  evasion  or  equivocation,  and  gives  rise 
witli  a  skilful  examiner  to  the  question, '  At  what  hour  were 
you  at  the  corner  ? '  or,  '  At  what  place  were  you  at  six 
o'clock  ? '  And  in  nine  instances  out  of  ten  it  will  appear 
that  the  witness  was  at  the  place  about  the  time,  or  at  the 
time  about  the  place.  There  is  no  scope  for  further  illus- 
trations; but  be  watchful,  I  say,  of  the  voice,  and  the 
principle  may  be  easily  applied. 

"  Third.  Be  mild  with  the  mild,  shrewd  with  the 
crafty,  confiding  with  the  honest,  merciful  to  the  young, 


328  CONDUCT  IN   COURT. 

the  frail,  or  the  fearful,  rough  to  the  ruffian,  and  a  thun- 
derbolt to  the  liar.  But  in  all  this  never  be  unmindful 
of  your  own  dignity.  Bring  to  bear  all  the  powers  of 
your  mind,  not  that  you  may  shine,  but  that  virtue  may 
triumph  and  your  cause  may  i)rosper. 

^^  Fourth.  In  a  criminal,  especially  in  a  capital  case, 
so  long  as  your  cause  stands  well,  ask  but  few  questions, 
and  be  certain  never  to  ask  any  the  answer  to  which  (if 
against  you)  may  destroy  your  client,  unless  you  know  the 
witness  perfectly  well,  and  know  that  his  answer  will  be 
favorable  equally  well ;  or  unless  you  be  prepared  with 
testimony  to  destroy  him  if  he  play  traitor  to  the  truth 
and  your  expectations. 

"  Fifth.  An  equivocal  question  is  almost  as  much  to 
be  avoided  and  condemned  as  an  equivocal  answer.  Sin- 
gleness of  purpose  clearly  expressed  is  the  best  trait  in  the 
examination  of  witnesses,  whether  they  be  honest  or  the 
reverse.  Falsehood  is  not  detected  by  cunning,  but  by 
the  light  of  truth,  or  if  by  cunning  it  is  the  cunning  of  the 
witness  and  not  of  the  counsel. 

''Sixth.  If  the  witness  detennine  to  be  witty  or  re- 
fractory with  you,  you  had  better  settle  that  account  with 
him  at  first,  or  its  items  will  increase  with  the  examination. 
Let  him  have  an  opportunity  of  satisfying  himself,  either 
that  he  has  mistaken  your  power  or  his  own.  But  in  any 
result  be  careful  that  you  do  not  lose  your  temper.  Anger 
is  always  either  the  precursor  or  evidence  of  assured  de- 
feat in  any  intellectual  conflict. 

"Seventh.  Like  a  skilful  chess-player,  in  every  move 
fix  your  mind  upon  the  combinations  and  relations  of  the 
game  ;  partial  and  temporary  success  may  otherwise  end 
in  total  and  remediless  defeat. 


CROSS-EXAMINATION.  329 

"  Eighth.  Never  undervalue  your  adversary,  but  stand 
steadily  upon  your  guard.  A  random  blow  may  be  just  as 
fatal  as  though  it  were  directed  by  the  most  consummate 
skill :  the  negligence  of  one  often  cures,  and  sometimes 
renders  effective,  the  blunders  of  another. 

"  Ninth.  Be  respectful  to  the  court  and  the  jury, 
kind  to  your  colleague,  civil  to  your  antagonist ;  but  never 
sacrifice  the  slightest  principle  of  duty  to  an  overweening 
deference  toward  either."  ^ 

1  Forum,  I.  77-80. 


330  CONDUCT  IN  COUKT. 


CHAPTER  XI. 

RE-EXAMINATION.  —  CONCLUSIOX   OF    THE    CONDUCT   OF 
EVIDENCE. 

§  453.  We  now  take  up  Re-examination.  Mr.  Cox 
opens  his  chapter  on  the  subject  with  a  passage  of  interest 
to  the  American  lawyer  :  — 

"  The  cross-examination  being  closed,  the  duty  of  re- 
examination devolves  upon  the  counsel  on  the  other  side. 
It  is  usually  undertaken  by  the  leader,  even  although  the 
examination  in  chief  had  been  conducted  by  the  junior, 
probably  because  it  is  supposed  to  require  the  skill  and 
caution  which  only  experience  can  teach.  You  will  re- 
member that  cross-examination  is,  in  like  manner  and  for 
the  same  reason,  conducted  by  the  leader  as  a  matter  of 
course,  unless,  as  is  sometimes  the  case,  where  the  witness 
is  unimportant,  or  he  has  great  confidence  in  his  junior's 
ability  and  prudence,  he  requests  you  to  undertake  the 
task.  Then,  and  only  then,  have  you  an  opportunity  of 
practising  the  lessons  you  may  have  learned."  ^ 

The  general  rule  in  American  practice  is  that  the  coun- 
sel who  examined  in  chief  conducts  the  re-examination. 
Other  things  being  equal,  any  branch  of  the  examination 
should  be  given  to  the  counsel  who  is  best  acquainted 
beforehand  with  the  testimony  of  the  witnesses. 

^  Advocate,  435. 


RE-EXAMINATION.  331 

§  454.    Mr.  Cox  says  further :  — 

"  The  object  of  re-examination  is  simply  to  obtain  from 
the  witness  an  explanation  of  that  which  he  has  said  in 
cross-examination.  The  necessity  for  giving  to  a  witness 
such  an  opportunity  proceeds  from  the  system  adopted 
in  our  courts  of  eliciting  evidence  by  means  of  ques- 
tions. A  witness  does  not  tell  his  story  without  interrup- 
tion, as  is  the  practice  in  most  of  the  law  courts  on  the 
Continent,  but  he  is  required  to  answer  the  questions  of 
counsel  and  seldom  permitted  to  do  more  or  to  accompany 
his  answer  with  an  explanation.  A  skilful  advocate,  in 
his  cross-examination,  avails  himself  of  this  to  obtain  such 
answers  only  as  suit  his  purpose,  excluding  the  explana- 
tions that  might  give  them  another  meaning.  It  is  the 
duty  of  the  advocate  on  the  other  side  to  note  such 
replies,  and  on  re-examination  to  give  to  his  witness  the 
opportunity  for  explanation  denied  to  him  before."  ^ 

§  455.  We  have  shown  that  one  of  the  purposes  of 
cross-examination  is  to  counteract  the  garbling  questions 
of  the  examiner  in  chief.  To  counteract  the  garbling 
questions  of  the  cross-examination  is  the  chief  purpose  of 
the  re-examination.  The  cross-examiner  not  only  can 
probe  the  witness  as  to  his  means  of  knowledge,  his 
feelings,  bias,  but  he  can  also  elicit  independent  proof  of 
his  case.  And  by  reason  of  his  right  to  restrain  the  wit- 
ness from  giving  more  than  mere  replies  to  his  questions, 
only  a  portion  of  the  truth  may  be  stated  by  the  an- 
swerer, and  that  in  such  a  form  as  to  impart  falsehood. 
Thus  one  who  has  testified  on  the  direct  examination  to 
an  occurrence  may  be  asked  on  the  cross  if  it  was  not  at 
night,  and  if  he  answers  affirmatively  he  may  stand  some- 

1  Advocate,  436. 


332  CONDUCT  IN  COURT. 

what  discredited  until  the  re-examination  permits  liim  to 
say  that  there  was  a  good  artificial  light  by  whicli  he  saw 
clearly.  An  item  of  indebtedness  of  the  plaintiff  to  the 
defendant  pleaded  as  a  set-off  may  be  proven  by  making 
the  plaintiff's  witness  on  cross-examination  testify  to  an 
admission ;  but  the  re-examination  may  draw  out  the  fur- 
ther fact,  that,  when  the  admission  was  made,  the  plaintiff 
also  said  that  the  indebtedness  had  been  paid,  or  that  its 
consideration  was  illegal. 

The  privilege  of  re-examination  is  all  the  more  neces- 
sary because  of  the  privilege  of  the  cross-examiner  to  so 
frame  his  questions  that  the  witness  can  only  answer  yes 
or  no. 

§  456.  But  the  re-examination  serves  other  purposes. 
The  witness,  from  bewilderment  or  heedlessness  or  fright, 
may  have  made  during  his  cross-examination  such  inaccu- 
rate statements  that  you  must  have  him  to  correct  them. 

§  457.  The  great  prompter  and  fountain  of  a  judicious 
re-examination  is  that  which  rightly  informs  the  direct  and 
the  cross, — knowledge  of  the  facts,  and  especially  famil- 
iarity with  the  narrative  of  the  witness.  Of  course  you 
ought  to  have  learned  everything  possible  of  the  case. 
And  where  the  mtness  is  important,  —  if  life,  liberty, 
reputation,  or  fortune  hang  on  his  testimony,  —  how  can 
you  excuse  yourself  if  you  have  not  heard  him  over  and 
over  until  you  have  so  mastered  his  evidence  that  even 
the  shrewdest  cross-examiner  can  neither  distort  nor  dis- 
credit it? 

§  458.  Mr.  Cox  deals  with  the  subject  in  the  following 
passage  :  — 

"  Before  you  have  sat  in  the  courts  many  days  you  will 
discover  the  vast  difference   between   different   advocates 


RE-EXAMINATION.  333 

ill  the  ability  with  which  they  conduct  a  re-examination. 
Sometimes  you  will  see  a  witness  who  has  been  apparently 
destroyed  by  a  cross-examination  triumphantly  set  up  again 
by  the  admirable  skill  with  which  he  is  rc-cxamincd,  —  ev- 
ery weak  point  strengthened,  every  contradiction  explained 
away,  every  doubt  removed,  and  his  original  story  repeated 
with  confirmations.  On  the  other  hand,  when  undertaken 
by  an  inefficient  advocate,  you  will  observe  how  bad  is 
often  made  worse  by  injudicious  attempts  to  mend  it,  and 
that  which  had  been  left  in  doubt  by  his  adversary  con- 
verted into  a  defeat.  The  difference  will  be  found  to  con- 
sist mainly  in  that  discretion  which  enables  the  advocate 
to  advance  his  questions  to  the  precise  point  at  which  the 
answer  will  be  innocuous,  and,  avoiding  such  as  are  not 
touched  upon  in  the  cross-examination,  so  moulding  his 
queries  that  they  shall,  while  adhering  strictly  to  the  rules, 
necessarily  bring  out  those  leading  points  in  his  own  case 
which  he  is  desirous  of  repeating."  ^ 

§  459.  Mr.  Harris  likewise  exaggerates  the  usual  effects 
of  cross-examination.     He  says :  — 

"  If  you  have  watched  the  cross-examination  with  that 
unceasing  vigilance  which  you  ought  to  have  bestowed 
upon  it,  you  will  have  observed  and  noted  the  points  that 
have  been  made  against  you.  Some  of  your  evidence  has 
disappeared  altogether ;  other  portions  have  received  such 
a  shock  that  they  exist  in  a  very  rickety  and  dilapidated 
form  ;  some  other  parts  have  received  a  coating  of  inter- 
pretation, if  I  may  use  the  expression,  which  must  be  re- 
moved; other  fragments  lie  here  and  there  in  a  mass  of 
confusion,  from  which  they  must  be  extricated  if  you  desire 
to  re-establish  your  case.     A   hurricane   seems   to  have 

1  Advocate,  438,  439. 


334  CONDUCT  IN  COURT. 

swept  over  your  homestead,  destroying  some  of  your  less 
substantial  outbuildings  and  threatening  even  the  mansion- 
house  itself."  ^ 

And  in  another  place  he  says  :  — 

"  As  you  watch  carefully  the  cross-examination  of  your 
witness,  you  will  probably  be  made  aware  for  the  first  time 
of  many  weak  points  in  your  case.  If  there  should  be  one 
which  you  have  flattered  yourself  has  been  passed  cleverly 
by  in  your  examination  in  chief,  you  may  certainly  antici- 
pate a  well-directed  blow  in  that  quarter  at  all  events. 
You  must  watch,  therefore,  like  a  second  in  a  pugilistic 
encounter,  for  when  it  comes  your  witness  w411  in  all 
probability  require  picking  up.  How  to  do  it  is  more 
than  I  can  tell,  as  I  am  not  holding  your  brief  and  know 
nothing  of  the  fticts.  It  is  in  the  remedying  of  such  a 
misadventure  that  the  art  of  re-examination  consists ;  and 
it  is  only  by  an  intimate  hioidedge  of  your  facts  and  their 
relative  hearings  that  you  will  be  enabled  to  set  your  wit- 
ness up  when  his  evidence  has  been  thus  battered."  ^ 

§  460.  We  have  reviewed  the  various  trials  to  which 
cross-examination  subjects  a  witness.  It  makes  him  mis- 
report  new  matter,  or  it  cuts  him  off  with  only  so  much  of 
explanation  as  is  worse  than  none  at  all ;  it  induces  sus- 
picion that  he  is  mistaken ;  it  develops  improbability  ;  it 
menaces  impeachment ;  and  occasionally  it  entangles  in 
fatal  self-contradiction  or  convicts  of  manifest  perjury.  If 
your  witness  is  in  the  last  category  and  you  see  that  there 
is  no  help  for  him  you  will  resolutely  abandon  him.  But 
you  can  generally  .do  something  of  importance.  Where 
the  cross-examination  has  only  misrepresented  the  witness, 
—  as  is  very  often  the  case,  from  the  use  of  artfully  as- 

1  Hints  on  Advocacy,  153,  154.  ~  Ibid.,  155,  156. 


RE-EXAMINATION.  335 

sorted  questions,  —  you  are  to  remove  the  check  by  which 
the  adversary  suppressed  certain  details  in  order  to  attack 
your  case  or  to  reflect  on  the  witness.  If  you  have  tlie 
"  intimate  knowledge  of  your  facts  and  their  relative 
bearings,"  as  demanded  by  Mr.  Harris  in  the  last  quotation, 
your  task  is  easy.  The  witness  will  almost  right  himself 
alone  in  the  more  important  parts,  if  you  but  let  him  know 
that  he  is  now  at  liberty  to  do  so.  When  you  have  cor- 
rected every  material  misstatement  and  explained  all  that 
your  adversary  has  made  to  need  explanation,  your  work 
of  repair  and  restoration  is  done.  Of  course  you  will  not 
lead  him  into  untrue  or  improbable  exj)lanations. 
§  461.  We  add  a  little  good  counsel  of  Mr.  Cox  :  — 
"  When  you  come  to  some  doubtful  matter  on  which 
the  cross-examination  has  damaged  you,  extract  from  the 
witness  an  explanation  of  it,  if  he  can  make  it ;  if  he  can- 
not satisfactorily  explain  it,  pass  it  by,  for  a  failure  to 
effect  this  object  serves  only  to  give  it  a  double  impor- 
tance in  the  estimation  of  the  court.  Here  it  is  that  all 
your  sagacity  is  called  into  play.  It  happens  frequently 
that  your  brief  gives  you  no  information  on  the  new  point 
started,  and  the  attorney  who  sits  behind  you  cannot  help 
you  :  it  is  as  new  to  him  as  to  yourself.  Failing  help  from 
these  sources  you  will  seek  to  form  a  judgment  from  the 
manner  of  the  witness  whether  the  fact  is  as  it  appears,  or 
if  he  can  give  any  explanations  of  it.  If,  when  questioned 
upon  it,  he  showed  signs  of  annoyance  and  an  eager  desire 
to  say  something  more  about  it,  you  may  conclude  that  he 
can  explain  and  you  can  safely  call  upon  him  to  do  so.  If 
this  symptom  is  absent,  then  your  sagacity  will  be  exercised 
in  a  review  of  the  internal  probability  or  otherwise  of  the 
matter  itself.     If  any  improbability  appears,  you  may  try 


336  CONDUCT  IN  COURT. 

with  extremcst  caution  to  approach  the  topic,  so  as  to 
afford  to  your  witness  an  opportunity  of  clearing  liimself, 
if  lie  can,  but  so  tenderly  that  you  may  retreat  unharmed 
should  you  find  that  you  are  treading  on  dangerous  ground. 
Wanting  all  these  encouragements,  you  will  prove  your 
discretion  by  passing  it  unnoticed.  Here  again  we  reiter- 
ate the  caution,  so  often  repeated  to  you  already,  never  to 
put  a  question  to  a  witness  without  an  aim,  nor  unless  you 
expect  to  derive  some  positive  advantage  from  it.  It  is 
wiser  to  leave  a  bad  matter  untouched  than  to  notice 
it,  unless  you  are  sure  that  you  can  make  it  better.  If 
you  cannot  do  good,  you  are  almost  certain  to  do  harm. 
More  of  the  advocate's  art  is  shown  in  silence  than  in 
sjjeaking."  ^ 

§  462.  We  have  noted  in  the  last  chapter  that  the 
cross-examiner  can  often  introduce  subjects  which  his 
adversary  cannot,  and  that  after  they  have  been  so  opened 
by  him  you  can  further  develop  them  in  re-examination. 
It  is  patent  that  you  will  re-examine  or  not  as  to  this  new 
matter  according  as  you  expect  or  do  not  expect  advantage 
therefrom. 

§  463.  Mr.  Cox  notes  another  important  point  in  the 
following  language  :  — 

"  A  skilful  use  of  the  opportunities  sure  to  be  offered  by 
the  cross-examination  will  enable  you  to  elicit  a  repetition 
of  the  most  important  parts  of  the  e^ddence  in  chief,  and  so, 
by  recalling  them  to  the  attention  of  the  jury,  not  only  to 
revive  the  impression  made  by  them,  but  to  operate  as  a 
set-off  against  whatever  of  an  unfavorable  character  may 
have  been  extracted  by  the  cross-examination."  ^ 

§  464.    The  conclusion  of  Mr.  Harris's  sixth  chapter  is 

1  Advocate,  440,  441.  2  Jbij.^  433. 


EE-EXAMINATION.  337 

such  an  excellent  summary,  that  we  adopt  it  here  as  our 
own   conclusion.     He  says  :  — 

"  Re-exaniination  arises  from  a  right  to  explain.  It  is 
often  so  advantageous  that  a  case  may  be  won  by  its 
judicious  exercise,  while  it  is  usually  so  innocent  of  evil 
that  it  would  require  the  utmost  ingenuity  of  the  most 
inexperienced  counsel  to  make  it  the  means  of  losing  one. 
You  nmst  have  a  thorough  knowledge  of  your  facts  and 
have  watched  every  question  of  the  cross-examination  with 
the  utmost  vigilance,  to  take  the  full  benefit  of  your 
right  and  to  make  your  case  stand  out  in  the  bolder  relief 
which  the  re-examination  will  afford  to  it.  But  nothing  is 
more  tedious  or  more  irritating  to  judge  or  jury  than  to 
see  an  advocate  flounderhig  in  re-examination  among  facts 
which  he  only  displaces  and  confuses,  thinking  he  must 
needs  ask  something  because  there  has  been  a  long  and  it 
may  be  severe  cross-examination.  First  ascertain  what 
fact  has  been  displaced  or  obscured  and  what  new  matter 
introduced,  and  then  you  will  know  what  requires  to  be 
rearranged  and  what  to  be  explained  before  you  rise  to 
put  a  single  question. 

"  In  re-examination,  as  in  cross-examination,  after  learn- 
ing thoroughly  hoiv  to  do  it,  the  next  branch  of  learning  to 
which  the  student  had  best  direct  his  assiduous  attention 

is,    How   NOT   TO    DO    IT." 

§  465.  Here  we  close  the  systematic  presentation  of  our 
present  theme  in  its  three  leading  branches,  —  examination 
in  chief,  cross-examination,  and  re-examination,  —  treating, 
however,  in  the  following  sections  of  this  chapter  a  few 
details  which  belong  rather  to  the  general  subject  than  to 
any  of  its  particular  parts.  We  have  derived  much  assist- 
ance and  instruction  from  the  authors  who  have  preceded 

22 


338  CONDUCT  IN  COURT. 

us.  All  of  them,  from  Quiutiliaii  to  Mr.  Harris,  seem  to 
us  open  to  a  serious  criticism.  It  is  that  they  everywhere 
by  example,  and  nearly  everywhere  by  precept,  inculcate 
that  he  is  the  best  examiner  who  most  successfully  hides 
unfavorable  truth.  Our  times  call  for  a  higher  morality. 
While  it  is  not  incumbent  on  counsel  to  make  out  the  case 
of  the  adverse  party,  still  he  is  not  to  be  tolerated  in  so 
conducting  an  investigation  as  to  cause  a  false  presentation 
or  suppression  of  facts  and  thereby  defeat  justice.  Let  the 
lawyer  be  trained  to  win  by  truth  ;  let  him  be  taught  to 
fight  for  and  with  nothing  else  ;  and  he  will  then  resort  to 
trick  and  chicane  as  little  as  a  man  will  try  to  travel  by 
flying.  Thus  will  the  real  purpose  of  the  bar  be  realized. 
Our  country  has  no  need  for  a  band  of  law^yers  perpetually 
vigilant  to  cheat  the  honest  and  win  false  verdicts.  A 
la\\7er  may  rightly  demand  for  his  client  every  advantage 
which  the  law  gives  him,  even  if  the  particular  law  be  bad. 
He  is  not  answerable  for  the  law  which  he  does  not  make. 
But  he  stains  his  conscience  if  he  permits  falsehood  and 
encourages  the  concealment  of  truth.  And  duty  and  pros- 
perity go  hand  in  hand.  The  lawyer  whose  great  business 
it  is  to  look  for  the  truth  of  the  facts  of  his  cases,  and  who 
is  not  afraid  of  this  truth,  w'ill  always  have  his  adversaries 
afraid  of  him.  He  will  only  fail  in  cases  where  he  will 
confess  that  he  ought  not  to  succeed. 

§  466.  We  open  the  topics  alluded  to  in  the  beginning 
of  the  last  section  with  some  good  advice  of  Mr.  Cox  :  — 

"  Let  us  warn  you  against  a  fault  into  which  young 
advocates  are  especially  apt  to  fall,  —  that  of  making  too 
frequent  and  too  frivolous  objections.  Many  inexperienced 
men  appear  to  think  that  by  continually  carping  at  the 
questions  put  to  the  witnesses  by  the  other  side  they  are 


CONCLUSION   OF  THE   EVIDENCE.  339 

provinj;  liow  quick  and  clever  they  are.  But  this  is  a 
mistake."  ^ 

The  hiwyer  slioukl  train  himself  to  meditate  while  lis- 
tening to  tlic  examination  of  his  adversary,  how  he  will 
reply  to  it  by  examination.  To  be  on  the  alert  for  objec- 
tions to  questions  interferes  with  and  often  prevents  this 
attention.  You  will  note  that  the  most  successful  trial 
practitioners  rarely  object  to  a  question.  Their  minds  are 
occupied  with  the  testimony,  the  witness,  and  what  they 
purpose  to  do  with  both  when  their  turn  comes.^ 

Still  it  is  often  important  to  cut  off  illegal  interrogation  ; 
and  when  you  must  make  objection,  it  should  be  done 
quietly,  and  usually  without  much  argument,  uidess  the 
court  is  in  doubt. 

It  is  to  be  observed  that  some  lawyers  are  very  expert 
in  providing  grounds  for  a  new  trial  by  judicious  objection 
to  testimony  not  very  strenuously  urged. 

§  467.  The  manner  of  the  counsel  conducting  an  exam- 
ination is  of  great  importance.  We  too  often  see  those  of 
experience  lose  patience  with  a  dull  witness  of  their  own, 
and  speak  to  him  too  sharply.  All  of  us  should  recollect 
that  in  the  court-room  we  are  at  home,  and  that  parties  and 
witnesses  are  in  some  sort  our  guests,  and  guests  frequently 
ill  at  ease.  It  behooves  us  not  to  be  rude  and  unmannerly 
in  our  own  house  ;  and  tlie  glaring  impolicy  of  anything 
but  the  most  pleasant  treatment  of  witnesses  should  never 
be  forgotten.  The  jury  represent  the  non-professional  pub- 
lic. They  naturally  sympathize  with  all  who  come  from 
their  o\vii  class,  and  they  have  the  keenest  sense  of  insults 
from  lawyers.     Blustering  is  usually  of  no  avail.    Convince 

1  Advocate,  367. 

2  Compare  7tli  and  8th  Golden  Rules,  ante,  §  452. 


340  CONDUCT  IN  COURT. 

an  honest  juiy,  not  by  browbeating  and  confusion,  but  by 
an  uncxcited,  gentlemanly  show  of  the  truth  that  a  witness 
is  mistaken  or  over-biased,  or  is  lying,  and  they  will  find 
against  him  with  evident  pleasure.  But  sometimes,  when 
looking  on,  I  have  fancied  that  I  have  seen  good  cases  lost 
because  the  jury  were  driven  away  from  them  by  a  too 
rough  handling  of  the  adverse  witnesses.  If  this  were  so, 
it  was  not  so  much  the  fault  of  the  jury  as  of  the  bullying 
and  hectoring  counsel  who  blinded  them  to  the  merits  of 
his  side. 

§  468.  If  the  trial  is  long  and  there  are  many  details  of 
evidence,  often  much  that  has  not  been  anticipated  \vi\\  be 
proven.  This  new  proof,  whether  it  comes  from  adverse 
witnesses  or  the  cross-examination  of  your  own,  will  often 
point  to  other  witnesses  or  other  documentary  evidence, 
and  they  should  be  investigated  by  you,  if  possible,  in  time 
to  make  use  of  them.  This  duty  must  be  done  by  yourself 
during  a  recess,  or  be  deputed  at  once  to  an  associate,  who 
should  take  care  to  be  swift  enough  without  being  too 
swift.  The  instance  quoted  above  from  DaWd  Paul  Brown 
of  the  examination  of  the  shot  during  an  interval  of  a  trial 
is  a  good  illustration.^ 

Get  in  every  available  parcel  of  proof.  The  courts  often 
allow  a  reopening,  even  during  the  argument,  in  order  to 
hear  evidence  which  had  been  inadvertently  overlooked  or 
which  has  just  been  found.  And  the  discovery  during  the 
trial  of  important  testimony  which  cannot  be  had  imme- 
diately, where  there  has  been  no  lack  of  diligence,  is  fre- 
quently allowed  to  be  a  ground  of  postponement. 

§  469.  We  will  give  an  illustration  of  the  advantage  of 
reopening  the  evidence.     The  master  of  a  schooner  was 

1  Ante,  §  404. 


CONCLUSION   OF   THE   EVIDENCE.  341 

on  trial,  charged  with  casting  away  his  vessel  with  intent 
to  defraud  the  underwriters.  There  had  been  a  mistrial. 
The  government  had  procured  new  evidence,  and  was  now 
confident  of  a  comiction.  During  a  recess  before  the  ar- 
gument, just  after  the  testimony  had  been  closed,  Choate, 
who  was  counsel  for  the  defendant,  accidentally  overheard 
the  colored  cook  —  who  was  attending  as  a  Avitness  for  the 
government  but  who  had  not  been  examined  —  make  a 
statement  which  he  deemed  favorable.  The  former  asked 
permission  of  the  court  to  put  in  an  important  proof  which 
had  just  come  to  his  knowledge.  The  cook  was  called, 
and  Choate  asked  him  what  was  the  behavior  of  the  mas- 
ter on  leaving  the  vessel,  to  which  the  Avdtness  answered, 
"  He  cried  like  a  child."  This  was  all.  And  the  jury 
could  not  reconcile  this  crying  over  the  loss  of  his  dear 
vessel  with  design  on  his  part  to  destroy  it,  and  there  was 
an  acquittal.^ 

§  470.  In  all  occasions  of  surprise  by  testimony,  you 
should  go  slowly  and  with  care.  Some  counsel  are  very 
dexterous  in  manoeuvres  by  which  they  make  time  to  con 
over  an  important  document,  to  prepare  a  right  cross-exam- 
ination for  a  witness  unheard  of  before  he  came  on  the 
stand,  or  counter  proof  against  unexpected  evidence.  But 
if  you  cannot  secure  the  leisure  that  you  would  prefer, 
you  must  keep  all  your  wits  about  you  in  order  that  your 
vision  and  invention  be  strained  to  the  utmost.  The  one 
may  discover  the  new  adversary  to  be  a  mere  man  of  straw, 
and  the  other  may  give  you  sufficing  arms  out  of  your 
present  store  or  show  you  such  near  to  hand. 

§  471.  There  are  certain  topics  from  which  the  adver- 
sary can  be  kept  if  you  do  not  go  into  them  yourself. 

1  Neilson,  Memories  of  Rufus  Choate,  403,  404. 


3i2  CONDUCT   IN   COURT. 

Thus  you  sliould  avoid  questioning  as  to  the  character  of 
your  client  unless  you  can  upliohl  it;  for  the  other  side 
cannot  attack  it  until  you  bring  it  in  issue.  This  instances 
how  a  blunder  in  the  direct  may  give  occasion  to  the  cross- 
examination.  We  have  noted  in  this  chapter  how  the 
latter  can  give  new  range  to  tlie  re-examination.  But  tlie 
point  we  wish  to  deal  with  now  is  the  policy  of  restraining 
or  giving  the  reins  to  your  evidence.  You  can  stop  too 
soon,  as  we  illustrated  above  by  tlie  counsel  for  the  pros- 
ecution who  proved  only  the  killing  in  order  to  coerce  the 
prisoner  to  rebut  the  presumption  of  murder  by  evidence 
and  thus  lose  the  conclusion  of  the  argument.^  x\nd  I 
have  seen  the  plaintiff  reserve  for  his  rebuttal  evidence 
which  he  expected  to  prove  a  masked  battery,  and  be 
unable  to  get  it  in,  either  from  the  defendant's  calling  no 
witnesses,  or  from  his  well-taken  objection  that  the  proof 
offered  too  late  is  not  rebutting.  On  the  other  hand,  a 
party  can  go  too  far,  of  which  we  will  give  an  example. 

§  472.  The  trustees  of  an  association  had  brought  a  bill 
alleging  that  a  deed  which  purported  to  be  their  own  was 
a  forgery,  and  also  that  it  was  without  authority.  If  the 
occupier  sustained  the  deed  against  the  first  attack,  it 
would  serve  as  color  of  title  and  be  the  foundation  of  a 
good  prescription,  as  he  had  bought  in  good  faith  and 
without  notice  of  any  defect,  and  he  would  prevail.  The 
plaintiffs  proved  by  themselves  that  they  did  not  execute 
the  deed,  and  rested  without  attempting  to  show  more. 
The  defendant  called  the  subscribing  witnesses,  men  of 
much  better  character  and  greater  credibility  than  those 
who  had  just  testified,  and  they  satisfactorily  supported 
the  due  execution  of  the  deed.     Here  he  ought  to  have 

1  See  ante,  §  276. 


CONCLUSION   OF   THE  EVIDENCE.  343 

stopped.  But  he  introduced  several  members  who  testi- 
fied that  a  meeting  of  the  association  had  authorized  tlie 
deed  to  be  made.  The  plaintiffs  rebutted  with  a  great 
array  of  members  testifying  the  other  way,  and  that  the 
grantee  was  so  plainly  aware  of  this  want  of  authority  that 
his  acceptance  of  the  deed  was  such  a  fraud  as  under  the 
peculiar  law  of  Georgia  prevented  the  acquisition  of  a  pre- 
scriptive title.  And  so  the  defendant  threw  away  the  only 
opportunity  of  success  he  had. 

§  473.  You  should  make  all  the  counter  proof  possible 
which  is  called  for  by  your  adversary's  case.  I  have  seen 
a  counsel  lose  a  verdict  because  his  client  was  not  recalled 
to  explain  an  admission,  as  he  could  have  done  honestly 
and  satisfactorily.  Whether  you  are  for  the  i3laintifF  or 
defendant,  always  carefully  note  the  details  of  the  adverse 
evidence  which  you  can  and  ought  to  contradict.  I  insist 
upon  this,  because  I  have  observed  the  duty  often  unper- 
formed by  even  experienced  and  able  lawyers. 

§  474.  Of  course  you  will  not  rely  too  slavishly  on  your 
preparation.  We  often  see  a  lawyer  conducting  a  case 
upon  a  preconceived  theory,  which  being  too  narrow  he  is 
all  the  while  trying  to  trim  down  the  facts  to  fit  it.  As 
the  whole  case  —  your  own  as  pared  off"  by  your  adversary 
and  that  which  he  has  made  —  unfolds  itself,  any  mistaken 
anticipation  must  be  corrected,  and  your  plan  must  find  a 
place  for  everything. 

§  475.  I^ext  in  value  to  the  acumen  of  the  lawyer  — 
M^iich  Avill  be  fully  discussed  after  a  while  —  are  the  qual- 
ities of  patience  and  self-possession.  The  case  must  be 
thoroughly  understood  and  it  must  be  wholly  presented. 
To  do  these  important  things  requires  the  existence  of  the 
two  qualities  mentioned  in  a  high  degi'ee.     Nothing  is 


344  CONDUCT  IN   COURT. 

more  unlawycr-like  than  eagerness  to  close  the  evidence 
not  fully  finished  and  enter  upon  the  argument. 

§  4/0.  Self-possession  is  specially  called  for  in  the 
trial  of  a  stubbornly  contested  case.  There  is  generally  a 
throng  who  attend,  representing  that  great  power  in  Amer- 
ica, public  opinion  ;  and  this  audience,  though  ever  so 
quiet,  approve  or  disapprove.  You  feel  it  although  you 
do  not  look  at  them.  And  then  the  passion  and  zeal  of 
your  client  and  all  his  side,  the  thrusts  of  your  adver- 
sary, and  many  eager  contests  over  points  submitted  to  the 
court !  In  short,  nothing  but  the  extreme  of  coolness  will 
save  you  from  blundering  and  keep  you  ready  to  seize  upon 
every  advantage  offered.  Then  forget  everybody  save  the 
witnesses,  the  court,  and  the  jury,  and  everything  but  the 
evidence. 

§  477.  The  length  of  our  chapters  on  the  conduct  of 
the  evidence  needs  no  apology.  Well  did  David  Paul 
Brown  say,  prefacing  his  Golden  Rules :  "  There  is  often 
more  eloquence,  more  mind,  more  knowledge  of  human 
nature,  displayed  in  the  examination"  of  witnesses  than  in 
the  discussion  of  the  cause  to  which  their  testimony  relates. 
Evidence  without  argument  is  worth  much  more  than  ar- 
gument without  evidence." 

§  478.  The  putting  in  of  the  evidence  has  two  chief 
objects :  (1.)  To  prove  the  material  allegations  of  your 
pleadings  and  strengthen  them  against  attack  ;  (2.)  To 
make  the  court  and  jury  perceive  clearly  their  relevancy, 
force,  and  satisfactoriness.  The  mind  that  rightly  arrays 
the  proofs  and  intuitively  sees  —  to  use  the  parlance  of  the 
bar  —  when  the  case  is  made  out,  belongs  to  the  lawyer, 
and  the  talent  of  so  ordering  these  proofs  and  giving  them 
such  expression  as  that  they  will  command  attention  and 


CONCLUSION   OF  THE  EVIDENCE.  345 

understanding  is  also  one  of  his  possessions.  And  here 
we  leave  the  subject,  whether  direct,  cross,  or  re-examina- 
tion, in  this  presentation  of  its  leading  object  and  highest 
merit,  saying  in  conclusion  that  the  examination,  which- 
ever of  the  three  kinds  it  is,  is  the  best  which  produces 
the  greatest  weight  of  supporting  and  defending  proof,  and 
presents  this  proof  most  impressively  and  intelligibly,  — 
and  that  the  evidence  so  conducted  is  generally  almost 
the  consummation  of  your  labors. 


346  CONDUCT  IN  COURT. 


CHAPTER  XII. 

NOTE-TAKING. 

§  479.  During  the  tritil  you  should  keep  a  mnning 
memorandum  of  everything  important.  We  have  con- 
fessed above  to  the  superiority  of  the  English  practice  to 
ours  in  the  matter  of  briefs,  and  we  must  also  admit  that 
the  careful  note-taking  by  both  their  judges  and  counsel 
is  well  worthy  of  a  more  extensive  imitation  here.  We 
will  commence  with  two  passages  from  Mr.  Cox,  whom 
we  have  so  often  cited  :  — 

"  While  the  examination  in  chief  is  proceeding,  it  will 
be  the  duty  of  the  counsel  on  the  other  side  to  give  the 
most  attentive  ear  to  every  question  and  every  answer, 
and  to  take  a  note  of  it  upon  his  brief."  ^ 

"Your  notes  of  the  evidence  as  it  proceeds  [that  is, 
during  the  examination  in  chief  of  the  adversary]  should 
be  fully  taken,  because  you  cannot  anticipate  at  this  period 
of  the  case  what  portions  of  it  may  prove  to  be  material, 
nor  where  a  question  may  arise  as  to  what  was  the  wit- 
ness's answer.  In  taking  these  notes  you  begin  with  the 
day  and  date  on  which  the  trial  took  place  and  the  name 
of  the  judge.  You  then  very  briefly  note  the  more  impor- 
tant points  of  the  opening  speech,  especially  such  as  you 
purpose  to  answer,  and  you  indicate  such  as  will  require 

^  Advocate,  366. 


NOTE-TAKING.  347 

peculiar  attention  by  scoring  it  twice  or  thrice.  Then, 
stating  the  name  of  the  witness  and  the  counsel  by  whom 
he  is  examined,  you  set  down  his  evidence,  leaving  a  broad 
margin  for  your  own  observations,  if  any  should  occur  to 
you.  It  is  not  necessary  to  give  both  question  and  answer, 
save  where  the  question  strikes  you  as  one  of  special  im- 
port, or  to  which  you  might  desire  to  refer  thereafter ;  it 
will  suffice  merely  to  give  the  answer  in  the  witness's  own 
words,  as  nearly  as  you  can  observe  them,  so  as  to  make 
them  intelligible.  Thus,  if  the  witness  be  asked, '  Were  you 
at  Exeter  on  Saturday  ? '  and  answers, '  I  was,'  —  a  leading 
question,  but  probably  not  worth  objecting  to,  —  you  set 
it  down  thus :  '  Was  at  Exeter  on  Saturday.'  But  let  it 
be  a  rule  with  you,  so  far  as  it  is  practicable,  always  to 
take  the  very  words  of  the  ^vitness.  As  you  proceed,  you 
will  find  that  the  e^ndence  suggests  to  you  matter  to  be 
explained  on  cross-examination,  or  to  be  answered  in  your 
speech  for  the  defence,  or  to  be  contradicted  by  your  o^vn 
witness.  Here  it  is  that  you  will  find  the  margin  useful. 
When  such  an  idea  occurs  to  you,  never  suffer  it  to  escape, 
trusting  to  recall  it  when  it  is  wanted ;  for  amid  the  mul- 
tiplicity of  claims  upon  your  attention  you  cannot  be  as- 
sured that  it  will  return  ;  but  grasp  it  instantly,  and  in  the 
margin,  against  the  evidence  that  is  so  to  be  treated,  set 
some  mark  which  may  catch  your  eye ;  and  if  the  words 
are  not  likely  to  suggest  the  thought  you  desire  to  recall, 
you  can  in  a  hurried  sentence  insert  there  that  of  which 
you  wish  to  be  reminded.  This  plan  is  especially  useful 
for  the  purpose  of  cross-examination  ;  for  it  is  extremely 
difficult  to  carry  in  the  mind  all  of  the  evidence  in  chief 
that  needs  to  be  explained  or  deprived  of  its  credit ;  but 
with  this  scored  and  noted  report  of  the  witness's  testi- 


348  CONDUCT  IN  COURT. 

moiiy  before  you,  it  is  unlikely  that  anything  of  moment 
will  escape  your  attention."  ^ 

§  480.  The  evidence  is  the  main  thing  to  be  attended 
to.  Mr.  Cox  directs  that  the  very  words  of  the  witness 
be  taken  doAVii.  That  is  generally  impossible  to  any  one 
but  a  stenographer.  We  are  advising  you  to  make  notes, 
not  a  full  statement.  What  a  dreary  task  it  is  to  wade 
through  a  verbatim  copy  of  questions  and  answers,  where 
the  reporter,  paid  according  to  the  number  of  words,  sets 
down  all  the  "  Wells,"  "  Says  he 's,"  and  repetitions  of  the 
examiner  and  the  witness.  Before  this  mass  can  be  under- 
stood it  must  be  severely  purged  of  the  trivial,  unmeaning, 
and  irrelevant,  often  constituting  more  than  three  fourths 
of  the  whole.  An  expert  long-hand  note-taker,  with  the 
exact  issues  and  the  needs  and  purposes  of  both  sides  fully 
understood,  can  keep  up  with  the  most  rapid  witness,  for 
he  only  writes  the  substance  of  that  which  is  necessary  to 
be  remembered.  There  was  an  official  reporter  of  my  old 
circuit  who  was  neither  a  short-hand  nor  a  phonographic 
writer.  He  used  many  abbreviations,  but  no  arbitrary 
characters,  and  his  ^\Titing  was  easily  legible  to  one  who 
had  heard  the  testimony.  He  never  seemed  to  be  behind. 
Of  course  he  did  not  give  the  questions  except  when  they 
were  important,  as,  for  instance,  such  as  were  asked  to 
prepare  for  a  contradiction.  His  report  was  not  word  for 
word,  but  it  was  always  complete  and  true.  Compared 
with  a  stenographic,  it  was  as  a  well-made  statement  of 
facts  by  the  reporter  of  decisions  beside  the  disordered  and 
unabridged  record  of  which  it  is  a  condensation. 

§  481.    Of  course  you  cannot  report  the  answers  to  your 
own  questions.     This  work  is  for  some  one  else,  —  your 

1  Advocate,  371-373. 


NOTE-TAKING.  349 

associate  or  clerk.  Or  you  may  fill  up  omissions  at  the 
first  stop,  calling  into  service  the  official  reporter,  your  col- 
leagues, your  adversary,  —  in  short,  anybody  who  can  assist 
you. 

Generally  the  notes  should  be  taken  by  a  counsel  who 
does  not  examine.  I  have  often  fancied  that  it  would  be 
well  to  devolve  on  the  leading  counsel  the  duty  of  note- 
taking,  who  could  easily  prompt  whatever  examination  he 
wished  to  be  made  by  his  junior.  The  examination  of  a 
witness  is  no  great  mystery.  It  consists  in  asking  proper 
questions,  which  will  often  suggest  themselves  better  to  a 
listener  than  to  the  interrogator. 

§  482.  But  it  is  not  only  the  evidence  of  which  notes 
are  to  be  made.  Points  urged  by  yourself  and  your  ad- 
versary, especially  the  authorities  of  the  latter,  sometimes 
his  very  words,  and  always  the  intimations,  rulings,  and 
action  of  the  court,  are  to  be  stated  briefly  and  intelligibly. 
To  do  this  enlightens  you  as  to  the  rest  of  your  evidence, 
your  argument,  and  what  you  are  to  do  in  subsequent  pro- 
ceedings in  the  case,  whether  motion  for  a  new  trial,  argu- 
ment in  the  court  of  errors,  or  another  trial. 

§  483.  Some  lawyers  —  as  Scarlett  did,  for  instance  — 
eschew  all  memoranda,  and  surprise  the  observer  by  their 
wonderfully  accurate  preservation  in  memory  of  everything 
which  happened  and  was  said  during  the  trial.  But  even 
this  high  achievement  of  the  unaided  memory  is  far  inferior 
in  efficiency  to  the  leisurely  contemplation  of  a  full  report 
of  the  proceedings  on  paper.  The  counsel  going  over  his 
entries  at  every  interval  Avill  often  detect  inconsistencies 
and  other  weak  points  of  his  adversary's  ease  which  would 
have  escaped  him  altogether  if  he  had  kept  no  notes.  He 
detects  them  because  they  are  before   his    mind's    eye   a 


350  CONDUCT  IN  COURT. 

sufficient  time.  Two  horses,  if  met  singly,  may  seem  to 
the  most  observant  to  be  of  exactly  the  same  color ;  and 
yet  when  they  are  actually  compared  they  will  appear 
quite  different.  We  sometimes  mistake  one  person  for 
another,  but  we  cannot  do  so  after  we  have  seen  the  two 
together.  The  superiority  of  note-taking  over  the  best 
memory  unaided  is  that  it  permits  the  testimony  and  im- 
portant occurrences  of  the  trial  to  be  examined  again  and 
again.  Even  the  ablest  and  most  gifted  of  our  profession 
have  not  the  quickness  of  apprehension  and  fixity  of  im- 
pression which  qualify  them  to  dispense  with  records. 

§  484.  I  will  give  an  illustration.  I  once  knew  a 
lawyer  of  good  parts  and  fair  standing,  who,  long  after 
having  heard  a  voluminous  document  read  in  court,  and 
without  refreshing  his  recollection,  could  give  you  the  sub- 
stance of  the  minutest  particular  as  he  had  understood  if. 
He  was  often  opposed  by  another  of  greater  power,  but 
his  inferior  in  the  respect  just  mentioned.  The  latter 
would  scrutinize  and  read  and  re-read  a  document,  and 
when  he  came  to  notice  it  in  his  argument  was  as  supe- 
rior to  the  first  in  comprehension  and  acumen  as  his 
adversary  was  to  him  in  quickness  of  apprehension  and 
retentiveness.  The  greater  lawyer  —  one  who  was  the 
monarch  of  the  bar  of  his  State  for  forty  years  —  owed 
his  wonderful  success  to  his  precise  and  faithful  knowl- 
edge of  details,  which  knowledge  he  got  from  something 
that  often  seemed  to  be  nothing  but  poring  over  them. 

§  485.  The  following  passages  describe  the  custom  of 
Choate,  who  has  left  a  reputation  as  a  la^vyer  more  envia- 
ble if  possible  than  that  of  the  great  William  Pinkney. 

"  He  took  constant  and  copious  notes  in  an  inde- 
scribable and  incomprehensible  hand.      He  would  write 


NOTE-TAKING.  351 

on  up  to  the  very  last  moment  before  rising  to  address  the 

"  When  he  came  to  address  the  jury  two  thirds  of  his 
argument  apparently  would  be  written." 

"  Every  night  during  a  trial  he  took  home  his  notes ; 
collated,  digested,  and  rearranged  them  with  reference  to 
the  final  argument." 

"  He  was  critically  careful  to  have  every  word  down  on 
paper  which  was  uttered  in  evidence ;  and  if  he  was  called 
out  of  court  at  any  time  for  a  few  moments,  he  would 
compliment  some  young  member  of  the  bar,  or  student 
who  happened  to  be  near  him,  by  placing  him  in  his  seat 
to  continue  the  notes  of  the  evidence  while  he  was  gone."^ 

§  486.  Of  course  none  of  us  feels  constrained  to  fol- 
low Clioate  exactly  in  his  custom  just  described.  But  his 
desire  to  make  up  for  his  own  use  a  complete  report  of 
the  trial  and  a  draft  of  much  of  his  speech  should  be 
attentively  meditated  by  those  Avho  disregard  such  helps. 
In  his  careful  and  extensive  note-taking  he  is  probably  a 
forerunner  of  the  coming  lawyers,  who  will  sift  all  things 
too  thoroughly  to  blunder  often.  The  investigation  of  facts 
becomes  more  earnest  and  laborious  every  year,  and  this 
is  why  our  trials  are  longer  than  those  of  the  past.  The 
lawyer  who  masters  every  detail  of  his  cases  is  called  for 
on  jdl  sides,  and  no  other  can  have  creditable  standing 
as  a  practitioner.  He  cannot  dispense  with  note-taking. 
It  is  notorious  that  the  attention  of  the  mere  listener  is 
ever  napping.  But  the  note-taking  must  never  flag,  and 
so  it  will  preserve  for  future  advantage  much  that  would 
have  otherwise  been  lost. 

§  487.   The   practice   of  Choate   in  reviewing  and  re- 

1  Parker's  Keminiscences  of  Rufus  Choate,  140. 


352  CONDUCT   IN   COURT. 

arranging  his  notes  every  night  deserves  to  be  held  up  as 
an  example.  All  the  effective  parts  of  the  testimony  and 
everything  else  which  we  have  advised  you  to  note  should 
be  gone  over  carefully  at  every  opportunity,  —  in  the  recess 
of  the  court  by  day  or  night,  while  a  witness  or  counsel  is 
waited  for,  or  while  your  associate  or  adversary  is  making 
a  point  or  arguing  the  case,  —  and  prepared  for  the  further 
conduct  of  your  evidence,  your  speech,  or  for  your  use  in 
whatever  course  may  be  taken  after  the  verdict  or  judg- 
ment. The  prominences  in  the  testimony,  the  contradic- 
tions and  conflicts,  the  attacks  on  some  material  witness, 
the  preponderances  of  your  adversary  and  those  of  your 
own,  cardinal  propositions  of  law  and  fact  and  relevant 
authorities,  —  all  these  things  should  be  rightly  digested 
at  every  interval,  and  put  in  convenient  memoranda  for 
instant  use.  This  is  something  like  the  systematizing  of 
the  day-book  and  journal  which  is  wrought  by  posting  the 
ledger. 

§  488.  The  proceedings  are  usually  taken  down  by  the 
official  reporter,  and  you  can  be  furnished  with  a  re- 
port. But  it  will  always  be  necessary  for  you  to  have 
notes  of  your  own  that  you  may  overlook  and  employ  at 
pleasure. , 

The  young  men  now  coming  into  the  profession  should 
if  possible  acquire  stenography.  Who  of  us  has  not  often 
desired  to  have  the  faculty  of  taking  down  as  rapidly  as 
words  can  be  spoken  the  opening  of  the  adversary,  the 
documents  read  in  evidence  and  the  oral  testimony,  pas- 
sages from  the  arguments,  and  the  instructions  of  the 
court  ?  But  if  you  are  not  a  stenographer,  and  \vill  only 
be  in  earnest,  you  can  do  wonders  in  long-hand.  Do 
no(    be   flurried.       Snatcli    every   opportunity   offered    by 


NOTE-TAKINa.  353 

objections,  useless  questions  and  answers,  and  the  many 
brief  stops,  and  you  will  in  general  be  well  up.  And 
let  it  be  your  desire  above  all  things  else  to  have  your 
notes  so  accurate  that  not  the  most  jealous  adversary 
or  over-careful  friend  can  detect  in  them  an  addition  or 
omission. 

§  489.  We  here  close  the  chapter,  hoping  that,  if  we 
have  not  said  all  that  can  be  said,  we  have  been  at  least  so 
suggestive  that  it  will  occur  to  the  reflective  reader. 


23  • 


354  CONDUCT  IN  COURT. 


CHAPTER  XIII. 


ARGUMENT. 


§  490.  It  is  appropriate  to  begin  this  chapter  with  the 
argument  mainly  concerned  with  questions  of  fact,  and 
which  is  to  be  made  immediately  upon  the  close  of  the 
evidence.  Before  the  conclusion  we  shall  find  it  profita- 
ble to  set  forth  briefly  the  essentials  of  what  we  may  call 
pure  law  arguments.  His  cases,  some  of  them  hinging  on 
the  evidence,  others  on  law,  and  many  of  them  on  both, 
are  perpetually  requiring  of  the  practitioner  that  he  be  able 
to  make  both  kinds.  The  two  must  be  merely  distin- 
guished and  not  divided.  In  the  former  there  is  frequent 
need  to  justify  to  the  court  some  legal  position  the  assump- 
tion of  which  is  necessary  in  order  to  argue;  the  facts 
properly,  and  in  the  other  there  must  nearly  always  be 
considerable  discussion  of  the  evidence  to  show  that  the 
particular  rules  of  law  invoked  are  applicable.  As  a  legal 
right  in  controversy  is  to  be  established  or  disallowed 
according  to  the  existence  or  non-existence  of  certain  facts, 
and  therefrom  it  appears  that  facts  are  the  elements  of 
cases,  it  follows  that  the  argument  intended  to  ascertain 
and  interpret  the  material  facts  is,  as  compared  with  the 
other  kind,  of  superior  importance.  That  all  cases  are 
only  facts,  is  a  truism.  But,  truism  as  it  is,  it  must  be 
consciously   and   completely  grasped   in   its   entire  reach 


ARGUMENT.  865 

before  the  essence  of  the  lawyer's  mission  —  whetlier  he  is 
advising,  preparing,  or  arguing  as  advocate,  or  investi- 
gating and  deciding  as  judge  —  can  be  clearly  discerned. 
The  real  difference  of  one  case  from  another  is  in  its  facts. 
The  different  law  questions  in  each  are  asked,  as  it  were, 
by  the  different  fiicts,  the  latter  being  independent  and 
leading  elements,  while  the  relevant  law  questions  are 
but  their  shadows ;  and  we  may  justly  apply  the  maxim, 
"  Accessorium  non  ducit,  sed  sequitur  suum  principale." 

§  491.  The  contents  of  the  last  section  being  premised, 
we  now  take  up  the  argument  to  the  jury.  Sometimes 
your  whole  business  is  with  their  sympathies,  as  where 
your  only  possible  achievement  is  to  obtain  a  recommen- 
dation to  mercy  of  a  prisoner  who  confesses  the  crime 
charged,  or  a  relief  of  the  guilty  party  in  a  libel  for  divorce 
from  disability  to  marry  again.  But  usually  your  employ- 
ment is  an  appeal  to  their  judgments,  to  the  end  that  you 
convince  them  your  case  is  better  than  that  of  the  adver- 
sary. The  evidence  —  to  use  Scarlett's  phrase  —  is  to  be 
dissected.^  The  contending  proofs  are  to  be  assorted  and 
then  weighed  against  one  another.  The  proper  methods  of 
dealing  with  the  facts  in  argument  are  now  to  engage  us. 

§  492.  The  openings,  the  course  of  the  evidence,  and 
points  made  to  the  court  on  both  sides,  have  given  promi- 
nence to  the  questions  really  mooted,  and  every  intelligent 
juror  has  begun  to  shape  them  to  himself  and  entertahi  a 
dawning  opinion  upon  them.  It  will  not  be  exactly  right 
to  say  that  the  issues  in  the  record  which  were  set  out  in 
the  plaintiff  s  opening  are  your  theme.  Your  side  of  some 
of  them  may  stand  so  feebly  that  you  must  needs  give  it 
up   while   your   adversary  surrenders   his  side  of  others. 

1  See  American  Law  Stiulies,  §§  1087,  lOSO. 


356  CONDUCT   IN   COURT. 

There  is  clasliing  conflict  in  the  witnesses  and  documents, 
the  advantage  being  in  parts  for  you  and  elsewhere  for  the 
adversary.  It  would  be  folly  to  demand  uncompromisingly 
all  that  is  claimed  in  your  pleadings.  To  know  what  can 
be  held,  what  can  be  wrested  from  the  opponent,  and  what 
is  really  doubtful  and  may  prove  the  reward  of  the  better 
conduct,  is  the  highest  gift  of  the  trial  practitioner.  The 
very  last  duty  to  be  done  before  your  speech  commences  is 
to  complete  the  selection  of  the  items  for  which  you  will 
contend  and  the  grounds  upon  which  you  will  take  your 
stand.  You  have  mentally  and  almost  unconsciously  made 
nuich  of  this  selection  while  listening  to  the  evidence,  but 
for  it  to  be  finished  rightly  there  should  be  first  a  careful 
comparison  of  all  the  conflicting  proofs.  If  the  trial  has 
been  long,  you  have  tabulated  the  results  of  each  day's 
evidence  every  night ;  and  your  memoranda  are  to  hand. 
If  the  case  is  one  of  small  compass  in  the  facts  and  little 
variety  in  the  questions,  a  short  recess  of  the  court  or  the 
opening  speech  on  the  other  side  may  be  time  enough  for 
this  final  preparation. 

§  493.  In  controversies  of  multifarious  detail  which  re- 
quire considerable  investigation,  it  is  your  true  policy  to 
draft  the  skeleton  of  the  main  part  of  your  contemplated 
argument.  At  every  pause  or  stop  in  the  trial  you  have 
reviewed  the  testimony  from  your  memory,  or  your  notes,  or 
the  report  of  the  stenographer,  and  thus  you  have  been 
informed  what  are  the  points  which  require  your  effort. 
For  the  plaintiff"  you  are  first  to  show  that  his  prima  facie 
case  is  satisfactorily  proved,  either  the  whole,  or  as  much 
as  you  can  hold  in  spite  of  all  attacks,  and  next  that  the 
defendant's  case,  or  some  material  part  of  it,  falls  because 
of  inti'insic  defect,  or  is  overcome  by  stronger  testimony ; 


ARGUMENT.  357 

if  you  are  for  the  defendant,  your  objects  will  be  the  oppo- 
site of  those  just  enumerated.  You  have  two  sorts  of 
reflections  to  make,  those  wliicli  sustain  your  theory  and 
those  which  oppugn  the  theory  of  the  adversary.  Your 
skeleton  should  enumerate  that  upon  which  you  will  touch, 
briefly  indicating  under  each  division  what  you  have  de- 
cided to  say.  If  there  is  a  central  position  on  which  the 
most  of  the  case  turns,  that  should  usually  be  the  begin- 
ning. And  where  you  must  take  diff"erent  and  indepen- 
dent positions,  it  is  better  to  j)ut  the  more  important  in  the 
front.  We  may  have  other  occasions  in  this  chapter  to 
remind  you  that  the  freshness  of  the  first  attention  of 
jurors  to  the  argument  of  each  side  should  always  be 
utilized  to  the  utmost. 

§  494.  Before  you  make  the  last  sketch  of  the  plan  or 
skeleton  of  your  speech,  you  are  to  settle  definitely  what  is 
the  best  verdict  you  can  expect  under  the  evidence.  To 
claim  too  much  will  hurtfully  lessen  your  influence ;  and 
it  is  plain  that  you  ally  yourself  with  the  adversary  if  you 
make  any  surrender  of  your  client's  rights  not  demanded  by 
overruling  necessity.  The  proper  mean  between  the  two 
extremes  is  dictated  by  a  wise  judgment  which  has  been 
sharpened  and  ripened  by  experience.  As  you  grow  in 
practice  you  will  more  and  more  develop  the  instinct 
which  in  a  manner  almost  inexplicable  leads  you  to  avoid 
excess  of  demand  or  concession.  The  verdict  which  you 
can  ask  for  as  dictated  by  the  weight  of  the  evidence  is 
your  purpose,  and  to  understand  clearly  what  it  is  supplies 
the  key  to  your  arrangement.  For  it  is  a  conclusion  from 
the  proofs  ])roperly  sifted  and  marslialled. 

§  49a.  Perhaps  the  next  point  in  natural  order  is  to 
note  that   vour   course   is  throuuh    both    affirmative   and 


358  CONDUCT   IN   COUKT. 

negative  propositions.  You  arc  to  make  good  your  posi- 
tions and  you  arc  to  dispute  those  of  the  opponent.  Your 
argument  will  be  an  alternation  of  defence  and  attack, 
establishing  the  credibility  of  the  evidence  sustaining  your 
case  and  destructively  criticising  that  which  is  on  the  other 
side.  The  circumstances  will  suggest  where  to  begin.  If 
you  are  for  the  plaintiff,  and  the  testimony  proving  the 
allegations  of  his  declaration  is  strongly  contested,  it  is 
generally  better  for  you  to  establish  first  the  credit  of  that 
testimony  as  far  as  you  can.  But  supposing  you  are  for 
the  same  party  when  the  testimony  just  mentioned  is  not 
challenged,  and  the  adversary  has  proved  a  plea  in  avoid- 
ance, your  usual  commencement  will  be  an  attack  upon 
the  support  of  this  plea.  These  two  instances  fall  far 
short  of  exemplifying  the  wide  variety  of  practice,  yet  they 
snffieiently  indicate  the  true  start  in  all  cases  for  him  who 
is  the  actual  plaintiff.  It  is  to  maintain  as  many  particu- 
lars as  possible  of  your  claim  when  a  counter  position  in 
the  nature  of  the  general  issue  is  relied  on,  or  to  pull  down 
the  props  upholding  the  affirmative  proposition  of  the 
adversary  confessing  and  avoiding.  Of  course  the  proceed- 
ing of  the  actual  defendant  will  be  the  opposite.  In  the 
case  first  put  he  will  commence  with  a  negative,  and  in 
the  second  with  an  affirmative. 

§  49G.  Whether  the  first  step  is  with  an  affirmative  or 
negative,  the  next  is  generally  with  an  opposite.  The 
plaintiff  who  alleges  the  satisfactoriness  of  his  proofs  then 
denies  that  of  the  others,  and  the  defendant,  after  arguing 
in  favor  of  his  plea  in  avoidance,  passes  on  to  contradict 
the  counter  evidence.  And  this  process  may  go  much 
farther  than  we  have  described,  and  it  may  under  different 
heads  taper  off  into  the  discussion  of  various  small  ques- 
tions where  you  affirm  or  deny  by  turns. 


ARGUMENT.  359 

This  suffices  to  disclose  the  general  nature  of  your 
arrangement.  It  is  a  list  of  propositions,  —  some  of  them 
affirmative  as  to  the  evidence  which  you  press  into  ser- 
vice, and  others  negative  as  to  that  which  you  reject. 
They  spring  naturally  from  the  testimony.  If  they  are 
well  taken,  —  that  is,  if  they  lead  logically  to  the  verdict 
claimed,  —  and  if  you  maintain  them, — that  is,  if  you 
show  from  a  fair  collation  of  the  evidence  that  they  have 
a  preponderance  as  against  those  of  the  other  side,  —  you 
will  generally  win. 

§  497.  So  much  for  what  we  may  term  the  selection 
of  your  propositions :  only  that  we  warn  our  student 
courageously  to  eschew  all  those  which  are  not  at  least 
plausibly  favored  by  the  evidence.  As  a  general  rule  they 
ought  to  be  almost  self-evident  as  soon  as  the  relevant  facts 
are  arrayed.  They  should  be  such  as  commend  them- 
selves to  the  modes  of  reasoning  and  the  sentiment  of  the 
common  business  man  wdio  is  the  typical  juror.  Some 
advocates  refine  too  much,  or  are  too  abstruse,  or  are  too 
severely  logical,  while  on  the  other  hand  a  far  greater 
number  fail  to  gather  the  testimony  accurately  and  in 
truthfully  collating  and  weighing  it,  and  therefore  their 
propositions  are  unmaintainable.  So  bear  it  in  mind  that 
you  must  be  as  discreet  in  deciding  what  propositions  you 
will  urge,  as  we  have  advised  you  to  be  in  determining 
what  verdict  you  will  ask. 

§  498.  Your  propositions  and  their  order  being  settled, 
then  comes  the  proper  disposition  of  the  facts  under  them. 
Of  course  you  are  not  to  forget  that  this  work  was  really 
done  before  in  order  to  select  your  propositions.  But  now 
you  must  set  down  in  the  skeleton  of  your  argument  under 
each  one,  whether  affirmative  or  negative,  all  that  by  which 


360  CONDUCT  IN  COURT. 

it  is  maintiincd.  And  especially  should  you  not  shut 
your  eyes  to  any  adverse  fact  wliich  is  strong  enough  to 
engender  a  dangerous  doubt  against  you.  And  you  ought 
to  attend  to  views  that  may  i)rove  hurtful,  even  if  not  sug- 
gested by  your  adversary.  Your  collation  will  be  partial 
and  injurious  if  you  ignore  the  facts  and  theory  on  which 
your  opponent  builds.  Even  if  the  latter  passes  over  this 
omission,  or  has  no  opportunity  to  reply  to  it,  it  may  be 
rectified  by  the  summing  up  of  the  court,  or  commented  on 
unfavorably  in  the  jury-room. 

§  499.  You  only  do  your  full  duty  by  exhausting  all 
the  material  evidence.  Often  some  particular  proposition 
of  yours  will  find  its  securest  prop  in  the  adverse  testimony. 
You  are  to  bring  together  under  the  proper  division  or  sub- 
division of  the  skeleton  whatever  upholds  your  side,  and 
whatever  too  that  attacks  it ;  and  you  are  also  to  enter 
how  you  escape  the  latter. 

§  500.  Your  legal  positions,  with  whatever  authorities 
you  intend  to  read,  must  likewise  be  jotted  down  in  the 
skeleton  where  they  belong.  As  a  general  rule  no  argu- 
ment goes  far  before  it  makes  appeal  to  some  principle  of 
law.  We  say  as  to  the  selection  of  your  legal  propositions, 
what  we  have  said  as  to  that  of  your  propositions  of  fact ; 
that  is,  always  have  them  — if  you  possibly  can  —  of  such 
soundness  and  such  clear  applicability  to  the  case  that  the 
judge  will  be  disinclined  to  hear  you  argue  them.  The 
really  effective  forensic  advocate  hardly  ever  strays  from 
the  beaten  track  of  the  obviously  true,  either  in  law  or 
fact. 

§  501.  Your  heads,  notes  of  the  proofs,  law  points,  and 
references,  should  be  stated  very  concisely.  The  briefer 
they  are  —  provided  they  are  easily  intelligible  —  the  less 


ARGUMENT.  361 

interruption  and  trouble  jou  will  have  in  consulting  them 
while  you  arc  speaking.  They  should  be  merely  mnemonic, 
.and  not  an  abridged  draft  of  your  contemplated  speech. 

§  502.  We  have  thus  shown  the  proper  contents  of  the 
plan  or  skeleton  of  the  speech.  Such  a  skeleton  is  always 
made  beforehand  by  experienced  advocates,  even  if  it  be 
not  thrown  on  paper.  It  is  better  to  write  it  out  carefully. 
Lord  Bacon's  saying,  that  writing  makes  an  exact  man,  is 
peculiarly  applicable  here ;  for  if  it  is  but  mentally  con- 
structed, some  parts  will  be  vaguely  conceived  and  feebly 
grasped.  And  the  writing  abridges  labor,  just  as  it  is 
easier  to  work  out  a  hard  arithmetical  sum  on  your  slate 
than  in  your  head.  These  notes  keep  you  from  the  hesi- 
tation and  rambling  to  which  one  is  often  liable  if  he 
is  indisi)osed,  or  confused  by  some  sudden  occurrence. 
And  when  you  have  the  case  to  go  over  again,  upon  a 
motion  for  a  new  trial,  or  in  the  court  of  errors,  or  it  may 
be  in  another  trial,  if  you  have  preserved  them  with  care, 
as  you  ought,  they  will  save  you  much  toil  of  recollection 
or  new  investigation. 

§  503.  A  forensic  argument  is  an  extemporaneous  ex- 
tension of  the  plan,  though  it  may  often  omit  parts  of  the 
latter  or  greatly  change  its  arrangement.  The  proper  be- 
ginning of  the  speaker  opening  the  discussion  is  to  parade 
the  different  questions,  that  is,  those  which  the  collision 
of  the  testimony  and  the  opposed  positions  of  the  parties 
have  made  the  special  business  of  the  jury  ;  and  if  you 
come  after  an  associate  or  adversary  who  has  essayed  this 
introduction,  you  generally  have  nothing  to  do  with  it  ex- 
cept to  supply  omissions  or  correct  errors.  But  we  shall 
have  something  further  to  say  after  a  while,  of  the  separate 
parts  of  several  counsel. 


3G2  CONDUCT  IN  COURT. 

§  504.  Next  you  may  have  to  consider  whether  to  take 
up  your  own  case  or  that  of  the  other  side.  Tliis  is  gen- 
erally to  be  decided  according  as  you  see  the  circumstances 
demand  from  you  more  exertion  to  establisli  the  one  or  to 
overturn  the  other.  If  the  main  contention  has  received 
evidence  appearing  to  have  produced  a  great  effect  against 
you,  or  if  it  has  been  illustrated  by  a  telling  speech  of  the 
adversary,  your  audience  may  feel  it  to  be  a  virtual  sur- 
render if  you  do  not  immediately  cope  with  the  adverse 
case  upon  the  decisive  ground.  If  you  can  stem  the  at- 
tack, if  you  can  show  that  this  imposing  array  of  evidence 
or  argument  is  more  appearance  than  reality,  —  that  the 
one  is  not  rightly  understood,  or  is  incredible,  or  is  beaten 
back  by  facts  which  have  been  overlooked,  and  that  the 
other  fails  to  take  account  of  some  material  points  and 
misinterprets  others,  —  you  are  not  to  squander  your  fresh- 
est energy  on  trifles  and  delay  to  engage  the  insolent  ad- 
vance until  the  jury  are  listless,  half  asleep,  or  irremovably 
set  against  you. 

In  the  last  instance  you  properly  begin  by  combating 
the  theory  of  the  adversary,  and  this  is  usually  the  role  of 
the  purely  defensive.  But  often  there  are  good  reasons 
for  presenting  your  own  view  first.  This  is  nearly  always 
so  when  you  represent  the  movant  and  you  are  first  in  the 
discussion.  And  when  the  case  seems  to  hang  in  doubt- 
ful balance,  or  the  adversary  has  not  been  very  impressive, 
you  will  usually  find  the  jury  ripe  for  the  explanation  of 
your  own  theory. 

§  505.  You  will  note  that  the  jury  like  other  audiences 
show  an  aroused  interest  whenever  a  speaker  commences. 
And  all  the  manuals  wisely  advise  the  orator  to  make  the 
best  possible  usie  of  these  fleeting  moments  of  impressibility. 


ARGUMENT.  3G3 

You  ought  to  sound  vour  key-note  at  once,  —  to  deliver  in 
a  prologue  the  essentials  of  your  argument.  Ordinarily 
what  the  jury  expect  from  you  tallies  with  that  which  we 
have  pointed  out  to  be  your  proper  beginning.  •  They  are 
nearly  always  plunged  in  medhis  res,  and  some  question  of 
the  case  is  uppermost  in  their  thoughts.  Chime  in  with 
them  by  giving  a  satisfactory  answer,  and  you  take  the 
tide  at  the  flood  which  leads  on  to  fortune.  For  if  you  go 
forward  in  true  progression  in  an  argument  which  really 
clears  up  difficulty,  they  are  led  by  you  in  spite  of  them- 
selves. They  are  fond  of  saying  that  they  only  listen  to 
the  evidence  and  do  not  mind  the  lawyers.  This  is  all 
banter  or  self-deception.  If  they  are  impartial,  nine  times 
out  of  ten  the  argument  on  the  right  side  which  fairly 
sifts  all  the  important  facts  gets  their  verdict. 

But  we  are  running  ahead.  As  we  return  to  our 
proper  place,  we  close  this  subdivision  by  repeating,  for 
you  to  consider  it  attentively,  that  your  beginning  is  not 
dictated  by  your  notes,  but  by  the  necessities  and  proprie- 
ties of  the  moment. 

§  506.  After  your  beginning  —  whether  it  be  aggressive 
or  defensive  —  you  will  go  on  through  the  propositions 
which  require  discussion,  keeping  in  the  way  which  leads 
to  the  verdict  you  demand.  We  say  the  propositions 
which  require  discussion  ;  for  it  is  a  foolish  waste  of  your 
time  and  labor  to  handle  the  irrelevant,  the  immaterial, 
the  conceded,  and  the  uncontested.  You  may  find  that 
you  have  no  use  for  the  parts  of  your  skeleton  which  are 
the  results  of  your  most  profound  study  and  laboi'ious  col- 
lation. The  live  themes,  —  that  is,  the  hints  from  the 
course  of  things  in  the  evidence,  the  intimations  and  in- 
quiries of  the  court,  the  positions  and  challenges  of  the 


36rt  CONDUCT  IN  COUin. 

adversary,  and  such  re-enforccniciit  or  attack  as  is  sug- 
gested by  your  own  note  of  the  needs  of  your  case,  —  these 
are  enough  for  you  to  speak  to.  In  other  words,  you 
shoukl  discuss  notliing  which  does  not  practically  lielp  you 
to  the  verdict.  The  irrelevant  and  innnaterial  should  only 
employ  you  when  you  divine  that  they  have  worked  on  the 
jury  an  impression  to  your  hurt.  Your  general  track  is 
easy  to  find.  It  is  determined  by  the  relative  importance 
of  the  topics  of  the  particular  case  ;  by  what  has  been  said 
already,  and  what  not ;  by  the  differing  grounds  upon  which 
you  and  the  adversary  seek  the  victory.  If  there  are  in- 
dependent positions,  as  where  separate  items  in  the  decla- 
ration or  different  pleas  have  each  received  separate  proof 
and  there  is  counter  evidence  throughout,  the  issues  being 
several  and  disconnected,  you  had  better  take  them  in  the 
order  of  their  importance.  If  you  convince  the  jury  on  the 
larger  ones,  you  may  have  little  trouble  with  the  smaller, 
or  you  may  afford  to  abandon  them.  And  even  in  a  collec- 
tion of  connected  propositions  it  is  better  to  discuss  the 
more  important  as  early  as  it  can  be  appropriately  and 
intelligibly  done. 

From  the  beginning  on  to  the  proper  conclusion  you 
will  be  guided  by  an  instinctive  fulfilment  of  the  require- 
ments of  your  case.  There  is  no  severely  logical  order  to 
be  followed.  The  great  desideratum  is  to  speak  properly 
to  every  point  which  ought  to  be  noticed.  Of  course  you 
will  finish  each  one  at  a  time,  as  far  as  you  can,  and  not 
jumble  things  together. 

§  507.  Having  set  forth  the  principles  which  guide  you 
in  your  commencement  and  general  arrangement,  it  is  now 
the  place  to  consider  the  proper  methods  of  treating  the 
facts.     Whatever  may  be  the  particular  topic  in  hand,  your 


ARGUMENT.  365 

first  duty  is  to  possess  the  jury  fully  of  all  the  pertinent 
evidence.  Some  of  it  may  have  escaped  their  attention  or 
been  forgotten.  Documents  introduced  may  not  have  been 
read.  As  you  come  to  each  group  of  facts,  you  should  be 
careful  to  bring  forward  every  detail  which  you  have  cause 
to  suspect  is  not  fully  attended  to.  As  to  matters  of  spe- 
cial importance  you  will  often  be  justified  in  repeating  the 
very  words  of  the  witnesses  or  documents.  But  ordinarily 
it  is  better  to  display  what  you  would  re-impress  on  the 
attention  in  hints  or  allusions  briefly  but  fully  suggesting 
the  whole.  By  rational  practice  you  can  greatly  improve 
yourself  in  their  use,  and  after  a  while  make  them  more 
effective  for  recalling  the  evidence  than  full  quotation. 
What  is  short  and  striking  enters  our  minds  of  itself  and 
lodges  in  the  memory,  but  the  long  and  prosy  is  only  forced 
in  by  persistent  hammering.  In  most  cases  the  colla- 
tion of  the  evidence,  —  the  topic  to  be  taken  up  in  the 
next  section,  —  if  it  is  exhaustive,  sufficiently  serves  as 
a  reminder. 

But  we  add  here  that  you  ought  to  study  extreme  ac- 
curacy and  fairness  in  your  repetition  of  the  evidence. 
Should  your  adversary  make  a  material  misstatement,  you 
nuiy  have  it  set  right  in  the  reply  of  yourself  or  an  asso- 
ciate, or  you  may  interrupt  the  speaker  and  correct  it  by 
a  brief  remark  to  the  court.  The  latter  is  nearly  always 
preferable,  being  fairer  to  the  adversary,  who  hardly  ever 
intentionally  misstates,  and  better  for  your  side,  as  it  re- 
moves the  false  impression  at  the  earliest  possible  moment. 
Of  course,  both  the  speaker  and  the  counsel  interrupting 
should  show  a  well-bred  considerateness  towards  each 
other,  and  not  the  bad  temper  which  often  comes  of  a  dis- 
pute on  such  occasions. 


366  CONDUCT  IN  COURT. 

§  508.  You  establish  a  projDosition  of  fact  by  the  evi- 
dence. It  is  first  in  h)gical  or(l<;r  to  show  the  proof,  and 
you  may  have  to  gather  it  from  many  dispersed  fragments. 
It  is  particuhirly  desirable  that  you  do  not  overlook  any- 
thing which  properly  belongs  here.  An  omission  may 
harm  by  leaving  your  proposition  too  weakly  supported,  or 
by  giving  your  adversary  opportunity  to  show  that  it  is 
untenable. 

Your  task  is  not  hard  where  there  is  no  serious  conflict 
and  your  proof  is  strong.  But  in  the  most  of  cases  you 
will  have  much  to  do  with  counter  evidence.  Here  you 
have  to  compare  and  weigh,  —  that  is,  if  you  have  decided 
that  the  point  can  be  mooted  profitably.  It  is  implied  in 
what  we  have  said  that  you  allow  your  adversary's  evi- 
dence its  full  effect.  Though  you  cannot  go  as  far  as  he 
does,  do  not  shrink  from  stating  all  its  force.  Nothing 
hurts  an  advocate  more  with  himself,  the  court,  and  the 
jury,  than  an  inclination  to  ignore,  suppress,  or  misrepre- 
sent what  is  against  him.  The  great  use  which  the  cli- 
ent has  for  his  special  talents  is  to  convince  the  jury  that 
the  objections  urged  to  the  cause  are  not  well  taken,  and 
he  cannot  do  this  satisfactorily  without  truly  presenting 
and  accurately  criticising  the  adverse  facts. 

§  509.  You  have  to  elevate  your  side  and  depress  that 
of  the  adversary.  As  we  showed  when  dealing  with  cross- 
examination,  the  attacks  made  on  evidence  are,  that  when 
it  is  rightly  read  it  comes  short  of  really  proving  the  point, 
that  is,  it  is  defective ;  it  is  intrinsically  improbable  ;  and 
it  is  outweighed.  You  are  to  fend  off^  such  attacks  from 
your  own  evidence  and  direct  some  or  all  of  them  effectu- 
ally against  that  of  the  other  side.  A  nonsuit  of  the  plain- 
tiff" who  has  failed  to  prove  all  of  his  material  points  is  a 


ARGUMENT.  367 

good  illustration  of  the  first  attack.  But  we  are  here  giv- 
ing attention  to  a  single  one  of  it  may  be  several  material 
points,  and  to  a  principle  whicli  serves  cither  plaintiff  or 
defendant  against  the  other.  I  have  observed  that  many 
advocates  are  prone  to  be  overstrained  or  too  logical  in 
essaying  to  show  that  the  opposite  testimony  does  not 
prove  what  is  claimed  for  it.  Against  such  a  one  you 
may  make  no  answer  at  all,  or  you  may  reply  ironically  or 
with  an  illustrative  jest.  It  would  be  wrong  to  meet  his 
feeble  attempt  seriously.  But  if  you  can,  with  advantage, 
throw  grave  doubts  upon  the  meaning  of  some  of  the  tes- 
timony on  the  other  side,  you  should  never  let  the  oppor- 
tunity slip ;  and  of  course  it  behooves  you  to  be  attentive 
in  defending  your  own  side  from  animadversion. 

§  510.  To  show  that  certain  testimony  is  improbable  of 
itself  is  a  delicate  matter  in  all  but  the  grosser  instances, 
as,  for  example,  where  the  man  swore  that  the  horse  was 
fifteen  feet  high  and  stuck  to  it.  The  peculiar  talent 
involved  is  familiarity  with  common  modes  of  thought, 
beliefs,  and  prejudices,  and  also  with  the  usual  incidents 
of  the  particular  affair. 

I  note  that  there  is  too  much  heedless  challenge  of  tes- 
timony upon  this  ground. 

§  511.  The  most  generally  successful  criticism  of  testi- 
mony is  to  show  that  it  is  outweighed.  The  jury  always 
like  to  think  that  they  are  finding  according  to  the  evi- 
dence, therefore  they  often  accept  testimony  which  they 
ought  to  disregard.  And  it  is  by  no  forcing  of  their  nat- 
ural bent  that  they  allow  the  preponderance.  \Vliile  a 
shrewd  advocate  is  arguing  from  not  the  most  palpable 
reasons  that  certain  evidence  fails  of  its  mark  or  is  incred- 
ible in  itself,  I  often  see  a  mingled  play  of  attention  and 


368  CONDUCT   IN   COURT. 

reluctance  on  their  faces.  And  during  a  temperate  and 
fair,  discussion,  which  sliows  that  tlic  testimony  impugned 
is  entitled  to  less  credit  tlian  the  opposite,  I  generally 
observe  a  responsive  expression  of  deep  interest  and  of 
assent.  You  may  have  but  a  single  witness,  who  is  met 
by  several  on  the  other  side,  and  you  may  justly  claim,  from 
his  excellent  character,  his  carcfuhiess,  his  means  of  know- 
ing the  facts,  or  from  other  reasons,  that  he  is  to  be  be- 
lieved at  the  expense  of  the  others. 

§  512.  We  think  that  this  subdivision  of  the  subject 
occupies  the  largest  place  of  all  in  practice.  There  is  seri- 
ous disagreement  of  testimony  in  the  large  majority  of 
cases,  and  it  is  nearly  always  the  main  problem  to  deal 
with.  To  mention  but  one  instance  of  frequent  occur- 
rence, the  parties,  with  their  families,  are  often  arrayed 
against  each  other.  We  drop  the  thread  of  our  connec- 
tion for  a  moment  to  say  that  it  is  better  for  you,  if  you 
can,  to  show  that  there  is  actually  nothing  but  apparent 
clashing  with  your  side,  or  that  both  sides  can  be  recon- 
ciled in  a  way  to  save  your  case.  Jurors,  and  judges  too, 
trying  facts,  are  loath  to  discredit  witnesses.  But  if  a 
conflict  lies  right  in  your  way,  you  must  needs  try  to  show 
that  the  evidence  of  the  other  side  on  the  point  is  to  be 
disregarded,  while  yours  is  to  be  accepted.  AVhere  the 
former  is  palpably  suspicious  or  grossly  improbable,  you 
will  have  but  little  trouble.  But  the  common  difficulty  is 
where  the  colliding  witnesses  are  all  honest  and  intelligent, 
or  where  there  are  circumstances  strongly  opposing  you. 
Here  you  must  have  the  acumen  to  find  the  turning-point 
and  the  talent  to  show  with  patience  that  what  seems  to 
be  the  superiority  of  the  adversary  upon  it  is  deceptive  and 
is  really  unequal  to  your  side.     One  witness  of  yours,  from 


ARGUMENT.  369 

his  greater  experience  upon  the  subject,  his  better  means 
of  knowing,  liis  more  complete  agreement  with  tlie  prob- 
abilities and  the  indisputable  evidence,  or  a  stubborn  and 
speaking  fact  in  your  favor,  may  decidedly  overbalance  the 
more  numerous  proofs  offered. 

§  513.  We  need  not  further  repeat  the  various  grounds 
of  attack  or  corroboration  of  testimony,  which  are  some- 
what extensively  handled  in  our  chapters  devoted  to  the 
examination  of  witnesses.  But  we  must  say  a  word  as 
to  the  potent  influence  which  particular  facts  often  exert. 
We  will  give  some  examples  :  — 

"  A  hansom  cab,  proceeding  down  Regent  Street,  came 
in  contact  with  a  brougham  which  was  crossing  at  right 
angles.  The  probabilities  were  all  immensely  in  favor  of 
the  brougham.  It  was  not  likely  that  the  coachman  would 
drive  a  valuable  horse  across  a  crowded  street  with  such 
utter  recklessness  as  to  dash  into  a  vehicle.  The  lady  in 
the  brougham  said  the  cabman  was  inebriated  ;  the  coach- 
man said  he  was  drunk ;  and  the  police  wiio  took  him  to 
the  station  charged  him  with  being  drunk  and  incapable. 
The  divisional  surgeon  reported  him  as  '  the  worse  for 
liquor ;  not  unable  to  walk,  but  unable  to  manage  a  cab.' 
This  was  an  extremely  strong  case  on  the  part  of  the 
brougham,  and  it  w^as  a  serious  one,  as  the  valuable  horse 
had  to  be  killed  on  the  spot. 

"  All  the  evidence  was  as  conflicting  and  contradictory  as 
to  the  accident  as  could  be,  and  to  make  it  the  worse  for 
the  cabman,  the  gentlemen  he  was  driving  were  not  called 
to  give  evidence  on  his  behalf.  He  had  to  rely  upon  pass- 
ing cabmen  and  the  driver  of  a  hearse,  who  deposed  as  to 
pace.  There  was,  however,  in  the  midst  of  all  this  confu- 
sion, one  point  of  evidence  which  could  not  be  contradicted. 

24 


370  CONDUCT   IN  COURT. 

The  verdict  did  not  depend  upon  the  '  inebriety '  or  the 
*  drunkenness '  of  the  cabman,  or  tlie  pace  of  the  cab,  or 
the  evidence  of  the  witnesses,  but  upon  a  small  scratch 
which  had  been  made  on  the  off-side  of  the  cab  by  the 
point  of  the  shaft  of  the  brougham.  On  this  piece  of  evi- 
dence alone  there  was  a  verdict  for  the  defendant."  ^ 

§  514.  The  same  author  tells  of  a  striking  case  in  which 
the  effect  of  the  evidence  was  allowed  in  the  teeth  of  all 
the  witnesses. 

"  The  action  was  brought  by  the  owner  of  a  valuable 
horse  against  a  farrier  for  negligence  by  improperly  shoe- 
ing ;  in  consequence  whereof  the  horse  fell  lame  and  had 
to  be  killed.  The  plaintiff  endeavored  to  prove  that  the 
hind  shoes  of  horses  were,  to  use  a  familiar  expression, 
'  rights  and  lefts.'  The  defendant  swore  that  this  was  a 
totally  erroneous  supposition.  His  witnesses  testified  to 
the  same  effect.  Perjury  was  not  to  be  attributed  to  any 
of  them.  .  .  .  The  plaintiff  was  not  prepared  with  evi- 
dence to  the  contrary,  as  the  point  arose  during  the  trial 
from  an  examination  of  the  shoe  by  the  counsel,  who 
placed  it  in  the  hands  of  the  defendant,  and  asked  whether 
it  was  not  made  for  the  near  foot.  He  said  it  would  do 
for  either  the  near  or  off  foot.  He  was  then  asked  whether 
he  Avould  put  it  on  either  the  one  or  the  other,  as  it  might 
chance.  He  answered,  '  Yes.'  The  nails  were  now  placed 
through  the  holes,  which,  being  properly  bevelled,  gave  to 
their  points  on  the  one  limb  of  the  shoe  an  outward  direc- 
tion, and  on  the  other  side  a  different  inclination.  The 
defendant  was  asked  whether,  looking  at  that  fact,  he  was 
prepared  to  say  the  shoe  was  not  made  for  the  near  foot. 
He  said  it  was  not.     He  was  then  asked  how  it  was  that 

1  Harris,  Hints  on  Ach'ocacy,  6th  ed.,  40,  41. 


ARGUMENT.  371 

the  nails  in  the  two  sides  pointed  at  different  angles. 
Answer:  '  It  was  the  fashion.'  The  Judge  :  '  The  fashion 
with  all  ftirriers  ? '     Answer  :  '  Yes.' 

"  In  sunnning  up,  the  learned  judge  (taking  the  testimony 
of  the  witnesses  and  judging  it  not  by  its  truth  but  from 
its  effect)  said  :  '  If  you  find  a  general  mode  of  doing  a  par- 
ticular thing,  you  may  depend  upon  it  there  is  some  good 
reason  for  so  doing  it,  especially  where  it  obtains  univer- 
sally in  some  mechanical  business.  If  all  farriers  make 
horseshoes  with  bevelled  holes  slanting  in  one  direction 
on  one  side  and  in  another  direction  on  the  other,  you 
may  be  sure  that  it  is  not  done  from  mere  caprice.  What 
is  the  effect  of  the  testimony  ?  It  is  to  show  that  if  the 
shoe  on  which  the  nails  slant  in  a  particular  direction  be 
placed  on  the  off  foot,  they  will  come  out  through  the  hoof 
and  enable  the  farrier  to  clinch  them  ;  but  if  the  shoe  be 
fixed  on  the  near  foot  they  will  have  a  tendency  to  pene- 
trate the  frog  of  the  foot  and  so  cause  pain  and  lameness 
to  the  animal.  The  question  is,  was  that  the  case  here  ? 
Was  a  shoe  intended  for  the  off  foot  fastened  to  the  near 
one  ? '  Tiie  jury  came  to  the  conclusion  that  that  had 
been  the  case  from  the  effect  of  the  evidence ;  the  testi- 
mony, uncontradicted,  being  directly  the  contrary."  ^ 

§  515.  Our  third  example  is  also  a  striking  one.  A 
colored  man  was   charged  with  the  murder  of  a  white 


'  Hints  on  Advocacy,  6tli  ed.,  180-182.  —  I  must  make  a  remark  on 
this  case  enforcing  the  teachings  of  Book  I.  Reread  Mr.  Harris's  sentence, 
"  The  plaintiff  was  not  prepared  witli  evidence  to  the  contrary,"  etc.  How 
his  attorney  and  junior  counsel  slighted  the  manifest  duty  of  calling  ex- 
perts to  prove  the  important  fact  as  to  the  proper  shoe  for  each  hind  foot, 
is  not  explained.  It  seems  to  be  a  case  of  decidedly  negligent  pre])aration  ; 
and  had  it  been  tried  by  an  average  judge  the  plaintiff  would  in  all  proba- 
bility have  lost. 


372  CONDUCT  IN   COURT. 

woman.  He  set  up  an  alibi.  The  deceased  was  accounted 
for  until  about  ten  o'clock  A.  :m.  of  the  day  on  which  her 
dead  body  had  been  found  in  a  secret  place  late  in  the 
afternoon.  The  prisoner  proved  that  on  that  day  he  had 
borrowed  a  horse  from  the  manager  of  the  plantation  on 
which  he  was  then  living  as  a  tenant,  and  was  planting 
cotton  in  a  field  some  four  miles  distant  from  the  place 
where  the  body  was  found.  He  had  only  his  wife  to  as- 
sist him,  and  she  could  not  under  the  statute  be  a  witness. 
The  ground  planted  was  about  six  acres.  He  ran  a  single 
furrow  in  the  cotton-beds  of  the  former  year,  and,  to  use 
the  plantation  vernacular,  his  wife  strewed  the  seed  be- 
hind him.  ^Yhen  the  witnesses,  who  passed  along  the 
road  some  one  hundred  yards  off,  saAV  him  about  the  mid- 
dle of  the  forenoon,  he  was  far  ahead  of  his  wife.  When 
he  had  opened  the  last  furrow,  he  turned  back,  as  he  said 
in  his  statement,  placed  a  board  on  the  foot  of  his  plough, 
and  covered  the  cotton ;  and  he  was  seen  so  engaged 
just  before  nightfall,  having  nearly  overtaken  his  wife  who 
was  putting  the  seed  in  the  last  furrow.  But  no  witness 
had  seen  him  from  the  middle  of  the  forenoon  until  the 
time  last  mentioned,  and  it  was  during  this  interval  that 
the  murder  had  been  committed.  The  manager  was  a 
most  credible  man,  and  he  was  of  great  experience.  He 
was  positive  that  the  prisoner  had  had  the  horse  for  that 
day  only.  He  was  arrested  a  few  days  afterwards,  in  the 
third  week  in  April,  and  he  had  been  in  jail  until  his  trial 
in  the  middle  of  the  following  June.  The  inten-ening 
weather  had  been  cold  and  unpropitious  until  about  ten 
days  before.  The  manager,  who  was  one  of  the  main 
witnesses  for  the  prosecution  and  who  leaned  decidedly 
in  its  favor,  was  made  by  cross-examination  to  prove  that 


ARGUMENT.  373 

the  cotton  had  just  come  up  in  all  of  the  rows,  and  tliat 
there  were  no  appearances  of  anytliing  else  havhig  been 
done  to  the  ground  than  what  has  been  told  above ;  that 
the  planting  of  so  large  a  quantity  of  hind  was  an  un- 
usually good  day's  work  for  the  defendant  and  his  wife. 
It  thus  appeared  that  the  prisoner,  who  had  been  given  to 
know  that  he  could  have  the  horse  for  one  day  only,  had 
exerted  himself  to  make  the  most  of  his  opportunity,  and 
could  not  spare  the  time  necessary  for  killing  one  four 
miles  away. 

§  516.  We  have  a  purpose  in  giving  what  may  appear 
to  be  a  redundancy  of  illustrations  of  something  not  com- 
monly occurring.  It  is  to  impress  upon  you  that  at  nearly 
every  turning  point  of  a  case  there  is  a  stubborn  fact,  con- 
ceded or  not  seriously  shaken  by  contest,  —  it  may  be  the 
superior  credibility  of  a  particular  witness,  or  a  palpable 
probability,  or  the  concurrence  of  proofs,  and  so  on, — 
which  will  prove  decisive  if  shown  in  all  its  force.  Even 
such  facts  as  those  exampled  in  the  last  three  cases  are 
often  but  superficially  understood  at  first.  They  —  and 
still  more  those  which  we  have  hinted  at  in  this  section  — 
require  to  be  discussed  patiently,  and  turned  over  and  over 
in  different  aspects  and  relations,  before  the  jury  discern 
their  full  significance  and  widest  reach.  To  bring  them 
out  of  obscurity  and  advance  them  in  their  due  conspicu- 
ousness,  is  frequently  the  greatest  exploit  of  the  advocate. 
And  closely  akin  is  the  achievement  of  correctly  reading  a 
mass  of  varied  details.  The  average  man  will  see  nothing 
in  it  but  irreconcilable  contradiction  and  inexplicable  con- 
fusion. But  the  master  of  facts  will  assort  its  parts  under 
their  proper  heads,  rightly  interpreting  each  and  all,  and 
he  will  take  his  auditors  with  him  as  he  discards  the  false 


374  CONDUCT  IN  COURT. 

and  embraces  the  true.  He  finds  the  real  meaning  of  every 
detail,  both  of  itself  and  in  its  relation  to  the  others.  This 
is  the  power  wliich  Goethe  showed  at  its  highest  in  his 
solution  of  Ilanilct,  —  a  character  which  had  down  to  that 
time  baffled  everybody  except  Shakespeare  himself.  The 
proper  analysis,  the  true  grouping,  the  right  theory,  —  if 
produced  after  an  impartial  review  of  the  facts,  —  are  self- 
evident.  And  the  true  interpretation  of  such  important 
facts  as  we  have  considered  in  tlie  next  preceding  sections 
likewise  meets  with  instant  acceptance.  You  must  find  a 
constant  guide  in  that  practical  discretion  which  keeps  you 
from  fruitlessly  straining  with  the  jury.  If  you  are  in  ear- 
nest to  profit  by  your  experience,  you  will  after  a  while 
acquire  a  discernment  of  what  you  can  and  cannot  have 
the  jury  to  do. 

§  517.  The  same  sure  and  safe  judgment  must  prevent 
you  from  being  too  adventurous  in  your  legal  positions. 
As  a  general  rule  the  verdict  is  in  accordance  with  the  in- 
structions of  the  court.  So  it  behooves  you  to  get  such 
instructions  as  will  give  the  jury  the  least  possible  liberty 
against  you.  It  is  very  important  for  you  to  discover  the 
leaning  of  the  court  as  early  as  you  can.  You  must  attend 
to  every  word  that  he  lets  fall.  You  may  sound  him  by 
an  off*er  of,  or  by  an  objection  to,  particular  evidence,  or 
by  the  submission  of  a  point.  But  if  you  still  remain  ig- 
norant of  his  opinion  you  ought  to  try  further.  Often  you 
will  succeed  in  making  the  discovery  desired  by  respectfully 
addressing  a  pointed  inquiry  to  him.  The  noncommunica- 
tion in  America  between  counsel  and  judges  during  argu- 
ment is  far  behind  the  English  practice.  Judge  Redfield 
says  of  the  latter  :  ''  In  consequence  of  the  constant  ques- 
tioning of  counsel  by  the  judges,   and  the  intimation  of 


ARGUMENT.  375 

difficulties,  it  more  commonly  happens  that  legal  questions 
are  ar<^ucd  mainly  upon  that  side  where  the  court  feels 
difficulty,  and  thus  much  time  is  saved  in  the  trial."  ^  If 
your  judge  is  reticent,  draw  him  out.  For  you  take  aim 
in  the  dark  and  shoot  at  random  if  you  do  not  know 
whether  he  understands  you,  or  whether,  if  understanding, 
he  agrees  or  dissents. 

§  518.  When  you  detect  an  adverse  leaning  it  is  not 
necessarily  incumbent  upon  you  to  essay  changing  it.  You 
are  first  to  consider  if  you  cannot  fit  your  case  to  the  rule 
which  he  will  give  in  charge.  If  you  can  do  this,  it  is 
nearly  always  a  better  course  than  to  engage  in  combat 
with  the  judge.  And  perhaps  you  can  sacrifice  the  point 
and  yet  receive  such  instructions  as  will  authorize  a  good 
verdict  for  you.  Of  course  you  need  not  waive  your 
exception. 

§  5 1 9.  It  is  often  politic  to  prefer  specific  requests  for 
instructions.  They  ought  in  general  to  be  axiomatic,  — 
that  is,  their  soundness  as  legal  propositions  and  their 
applicability  to  the  case  in  hand  should  be  obvious.  Now 
and  then,  however,  you  must  have  a  novel  or  abstruse  ques- 
tion decided  for  you  before  you  can  win  or  hold  a  verdict. 
The  successful  line  of  argument  here  is  generally  one  which 
shows  your  point  really  to  belong  to  the  most  unquestion- 
able provisions  of  the  law,  —  that  it  is  not  casus  omissus, 
and  that  its  novelty  is  only  seeming.  The  authorities 
which  you  read  should  fairly  cover  the  proposition  mooted, 
and  if  they  are  not  well  considered  you  should  strengthen 
them  ^vith  such  views  as  your  observation  convinces  you 
to  be  influential  with  the  average  judge. 

If  the  court  does  not  give  an  intimation  in  favor  of  your 
1  Law  Almanac,  (1870,)  74. 


376  CONDUCT  IN   COURT. 

cardinal  legal  propositions  you  had  better  read  even  the 
most  familiar  authorities  which  sustain  them,  such  as  the 
statute,  relevant  code  sections,  and  well-known  decisions 
of  your  court  of  errors.  The  best  judges  now  and  then,  in 
the  haste  and  confusion  of  nisi  prias,  rule  counter  even  to 
such  authorities. 

§  520.  The  argument  which  is  nothing  but  a  law  argu- 
ment is  mostly  made  before  the  court  of  errors,  but  yet  it 
occurs  in  trial  practice  often  enough  to  require  notice  here. 
It  is  to  present  the  process  and  result  of  study  of  the  ques- 
tion involved.  In  another  i)lace  we  have  essayed  to  indoc- 
trinate the  student  in  the  methods  of  Legal  Investigation.^ 
To  have  sure  and  ready  possession  of  these  is  the  only 
equipment  for  convincing  the  court  through  the  whole 
range  of  cases,  from  those  demanding  the  most  elaborate 
and  learned  inspection  of  records  and  authorities  —  as  is 
illustrated  by  the  renown  and  success  of  Binney  in  his 
"  great  argument  "  in  Vidal  v.  Girard's  Executors  ^  —  to 
those  wholly  novel  and  without  precedent,  deeply  affect- 
ing the  interests  of  the  public,  which  must  have  original 
solution  in  searching  inquiry  into  the  nature  of  the  particu- 
lar subject  and  the  reason  of  the  law,  —  a  most  striking 
instance  of  which  is  the  effort  of  Webster  in  Gibbons 
V.  Offden,  which  we  incline  to  rate  as  the  best  of  all  his 
speeches.^ 

§  521.  But  to  return  from  the  last  digression.  It 
greatly  advances  you  with  the  jury  to  have  your  cardinal 
legal  propositions  assented  to  by  the  judge.  To  draw 
from  him  a  favorable  intimation  during  your  speech  will 

1  American  Law  Studies,  §§  765-809.  2  2  How.  146-164. 

3  9  Wheat.  8-33.  Cf.  Webster's  narrative  of  his  satisfaction  witli  this 
argument,  Harvey's  Reminiscences,  140-142. 


ARGUMENT.  377 

help  you  ;  but  if  you  fail  in  this,  and  if  you  have  satisfied 
him,  he  will  approve  your  positions  in  his  instructions, 
which  will  be  of  much  advantage.  Of  course,  you  submit 
your  law  to  the  court,  and  while  you  may  expand  and 
illustrate  it  to  the  jury  to  aid  them  in  the  application, 
you  are  not  to  argue  it  to  him. 

I  once  observed  a  lawyer  who  had  the  invincible,  but 
very  unpopular,  side  of  a  case.  His  policy  was  to  ignore 
the  jury,  there  being  actually  nothing  for  them  to  do.  The 
judge  busying  himself  with  drafting  his  instructions  and 
unconscious  of  everything  else,  the  lawyer  made  an  elabo- 
rate development  of  liis  law  to  the  jury.  His  adversary 
accepted  the  challenge  and  addressed  his  reply  to  them. 
The  former  got  decisive  instructions  in  his  favor,  but  the 
jury,  who  had  been  made  by  both  counsel  to  feel  that  they 
were  judges,  disregarded  them,  and  decided  the  law  accord- 
ing to  their  preferences.  The  verdict  was  set  aside,  it  is 
true,  but  there  would  not  have  been  an  improper  one  if  the 
counsel  making  the  first  argument  had  urged  his  proposi- 
tions to  the  court  alone. 

§  522.  We  have  in  the  foregoing  sections  of  this  chapter 
set  forth  the  contents  of  an  average  argument.  This  typi- 
cal scheme,  containing  the  best  reasons  which  you  can  col- 
lect from  the  facts,  and  the  applicable  law,  is  the  staple 
of  all  the  trial  practitioner's  happy  speaking.  It  is  in  av- 
erage cases  of  far  more  effect  than  eloquence.  Scarlett 
and  Jeremiah  Mason  could  not  be  called  eloquent,  and 
yet  they  were  the  most  formidable  forensic  antagonists  of 
their  time.  And  the  study  of  Erskine  and  Choate  shows 
that  the  principal  aim  of  these  two  great  orators  was  to 
solve  rightly  the  questions  of  fact  and  law  in  their  cases. 
Abstract  from  their  speeches  that  which  answers  to  what 


378  CONDUCT  IN   COURT. 

we  have  pointed  out  as  the  business  of  the  forensic  speaker 
and  the  remnant  is  almost  unmeaning.  Such  a  comparison 
of  Scarlett  and  Mason  with  Erskinc  and  Choatc  gives 
true  opinion  of  the  value  of  these  essentials  of  argument, 
and  shows  that  while  they  can  win  without  eloquence  the 
latter  cannot  win  without  them. 

Having  now  completed  the  outline  of  our  subject,  we 
must  devote  some  space  to  details  not  yet  noticed. 

§  523.  As  we  have  already  said,  the  matter  of  your 
speech  is  twofold ;  that  is,  you  have  on  one  side  to  advance 
your  own  affirmative  points,  and  on  the  other  to  reply  to 
those  of  the  opponent.  The  first  counsel  we  give  here  is 
thiit  you  be  temperate  and  exhibit  fairness.  It  is  nearly 
always  the  true  policy  to  claim  for  yourself  a  measure  of 
proof  which  somewhat  comes  short  of  your  full  strength, 
while  conceding  a  greater  strength  to  the  other  side  than 
really  exists,  and  at  the  same  time  to  justify  the  verdict 
you  ask.  Restrict  the  scope  of  your  proofs  and  enlarge 
that  of  the  counter  ones  if  you  can  still  show  your  positions 
to  be  such  as  command  assent.^  The  lawyer  who  exagger- 
ates his  side,  and  unduly  depreciates  the  other,  is  sure  to 
call  upon  himself  dangerous  comment  in  the  reply,  and 
from  the  court  and  jury.  It  was  a  great  art  cultivated  by 
Scarlett,  with  increasing  achievement  to  the  last,  to  under- 
state the  facts  on  which  he  relied.  His  aim  was  to  have 
the  jury  find  for  themselves  a  support  for  his  side  which 

1  Compare  Horace's 

"  Vim  temperatam  di  quoque  provehunt 
In  majiis." 
("  The  gods  increase  force  wliicli  is  rightly  regulated  by  the  judgment.") 

Note  also  Morison's  saying  that  Macaulay  never  understood  "the  force 
of  moderation,  the  impressiveness  of  calm  understatement,  the  penetrating 
power  of  irouy." 


J 


ARGUMENT.  379 

he  had  apparently  overlooked.  For  men  will  pet  tlicir 
own  ideas  while  they  are  indifferent  to  those  of  their  fel- 
lows. The  special  skill  of  Scarlett  was  to  lead  the  jury  to 
the  point  where  they  wonld  necessarily  make  the  desired 
discovery  without  disclosing  his  purpose.^  Mr.  Harris  is 
in  accord  with  the  matchless  advocate  when  he  says :  — 

"  There  is  a  mode  of  creating  an  impression  on  the  mind 
of  a  jury  without  in  the  least  appearing  to  desire  it,  and 
which  is  of  all  the  most  effective.  All  men  are  more  or 
less  vain,  and  every  man  gives  himself  credit  for  a  deal  of 
discernment.  He  loves  to  find  out  things  for  himself,  — 
to  guess  the  answer  to  a  riddle  better  than  to  be  told  it,  — 
to  think  he  can  see  as  far  into  an  opaque  substance  as 
most  people.  ...  If  you  want  a  point  thoroughly  to  im- 
press the  jury,  don't  actually  make  it,  if  you  can  effect 
your  object  by  a  less  direct  means ;  let  the  jury  make  it 
for  themselves,  only  be  sure  that  it  is  made."  ^ 

§  524.  If  you  are  one  of  the  great  number  who  have  not 
the  faculty  of  this  dexterous  suggestiveness,  you  can  how- 
ever surely  avoid  extravagant  claims  for  your  client  and 
improper  disrespect  of  the  case  against  you.  You  can 
array  your  own  proofs  with  correctness  and  you  can  im- 
partially weigh  the  adverse  evidence,  neither  adding  to  the 
former  nor  taking  from  the  latter.  The  effect  you  allow 
the  testimony,  explanation  of  it  to  be  given  here  and  con- 
jectural piecing  to  be  made  there,  the  line  of  discussion 
you  follow,  every  step  by  which  you  go  towards  your  goal, 
and  your  final  summary  if  it  is  needed,  —  all  ought  to  be 
unstrained,  moderate,  probable,  and  even  self-evident  as 
far  as  possible.     The  successful  advocate  of  our  day  has  a 

^  See  Ainerii'an  Law  Studies,  §  1090. 
2  Hints  oil  Advocacy,  Gtli  ed.  17. 


380  CONDUCT  IN   COURT. 

tsliarpciicd  perception  of  tliat  wliich  will  be  accepted  or 
rejected  by  the  average  man.  The  morals,  maxims  of 
expedience,  and  the  logic  current  in  the  community,  —  to 
borrow  the  distinction  of  Lord  Bacon, —  he  has  in  judg- 
ment and  use,  though  many  times  he  could  not  express  nor 
set  them  down.  However  deeply  he  may  be  versed  in  the 
multitudinous  library  of  the  law,  he  is  not  a  man  of  books 
while  he  talks  to  juror.-;.  Ilis  methods  are  those  current 
at  the  fireside,  in  the  chat  of  promiscuous  meetings,  which 
rule  in  business  transactions  and  sway  the  opinions  of  ordi- 
nary men,  the  great  majority  of  whom  seldom  read  more 
than  a  newspaper.  This  is  not  to  say  that  any  man  picked 
up  in  the  street  can  properly  argue  a  case  ;  but  we  mean 
that  the  ideal  forensic  argument  will  carry  the  typical 
juror  along,  never  getting  beyond  his  understanding  or 
provoking  disagreement  with  statement  or  principle.  So 
you  are  to  remember  that  not  alone  your  propositions,  but 
the  ways  by  which  you  advocate  them,  are  to  be  such  as 
will  naturally  find  favor  with  the  multitude. 

§  525.  We  have  emphasized  moderation  and  fairness. 
It  is  true  that  there  are  successful  lawyers  who  are  always 
very  positive  and  very  intolerant  of  difference.  Such  have 
great  accuracy  in  sifting  testimony,  and  discerning  what  is 
the  most  probable  conclusion  therefrom.  But  the  best 
friends  of  these  strong  men  lament  their  arrogance  and 
bluster,  and  recall  many  of  their  miscarriages  where  a  more 
pleasant  manner  might  have  saved  the  day. 

§  526.  If  you  cannot  find  at  least  a  plausible  view 
counter  to  that  of  the  adversary,  leave  the  latter  alone. 
Shallow  replies,  which  one  should  dignify  beyond  desert 
to  call  fallacy,  are  often  spouted  forth  with  ardor  and  ear- 
nestness, only  to  be  recognized  by  the  jiu'y  as  shameless 


ARGUMENT.  381 

attempts  to  gull.  Yield,  or  do  not  contest,  or  turn  at- 
tention from  a  point  that  is  palpably  against  jou.  Some- 
times, when  you  can  find  no  fit  answer,  no  ojiportunity 
of  compensation  in  attack  elsewhere,  none  of  diversion, 
your  sole  resource  is  to  keep  your  eyes  shut  to  the  dan- 
ger. The  advocate  now  and  then  resorts  to  what  may  be 
called  an  ignoring  stratagem.  The  following  is  related 
of  Choate. 

§  527.  "  In  giving  his  testimony,  a  witness  for  his  an- 
tagonist let  fall,  with  no  particular  emphasis,  a  statement 
of  a  most  important  fact,  from  which  he  saw  that  infe- 
rences greatly  damaging  to  his  client's  cause  might  be 
dra^Mi  if  skilfully  used.  He  suffered  the  witness  to  go 
through  his  statement,  and  then,  as  if  he  saw  in  it  some- 
thing of  great  value  to  himself,  requested  him  to  repeat  it 
carefully  that  he  might  take  it  down  correctly.  He  as 
carefully  avoided  cross-examining  the  witness,  and  in  his 
argument  made  not  the  least  allusion  to  his  testimony. 
When  the  opposing  counsel,  in  his  close,  came  to  that  part 
of  his  case  in  his  argument,  he  was  so  impressed  with  the 
idea  that  ]\Ir.  Choate  had  discovered  that  there  was  some- 
thing in  that  testimony  which  made  in  his  favor,  although 
he  could  not  see  how,  that  he  contented  himself  with 
merely  remarking  that  though  Mr.  Choate  had  seemed  to 
think  that  the  testimony  bore  in  favor  of  his  client,  it 
seemed  to  him  it  went  to  sustain  the  opposite  side  ;  and 
then  he  went  on  with  the  other  parts  of  his  case."  ^ 

As  the  foregoing  is  told,  we  can  hardly  understand  how 
Choate's  adversary  was  caught  in  the  trap  he  saw  set  for 
himself.  An  obvious  ruse  is  worse  than  useless.  And 
behavior  which  is  really  trick  can  be  but  seldom  tolerated, 

1  Neilson,  Memories  of  Rufus  Choate,  324,  325. 


382  CONDUCT  IN   COURT. 

and  be  but  seldom  successful  when  attempted  by  even  the 
best  of  men  in  the  best  of  cases.  Remember  the  words  of 
Bacon :  — 

"  Certainly,  the  ablest  men  that  ever  were  have  had  all 
an  openness  and  frankness  of  dealing  and  a  name  of  cer- 
tainty and  veracity  ;  but  then  they  were  like  horses  well 
managed,  for  they  could  tell  passing  well  when  to  stop  or 
turn ;  and  at  such  times,  when  tliey  thought  the  case  in- 
deed required  dissinmlation,  if  then  they  used  it,  it  came 
to  pass  that  the  former  opinion  spread  abroad,  of  their 
good  faith  and  clearness  of  dealing,  made  them  almost 
invisible." 

§  528.  We  turn  now  to  another  branch  of  the  subject. 
As  a  general  rule,  fine  speaking  is  to  be  avoided.  Jurors 
are  influenced  by  exposition  of  the  evidence  and  the  de- 
mands of  justice  in  the  case.  If  there  is  a  particular 
manner  which  is  potent  beyond  all  others  with  them,  it  is 
lively  but  not  heated  discussion.  It  is  much  above  ordi- 
nary conversation,  and  yet  much  nearer  to  it  than  to  the 
violent  action  of  the  ancient  orators.  From  seeming  in 
his  speeches  to  be  only  inquiring  with  the  jury  after  the 
proper  verdict,  Scarlett  was  called  the  thirteenth  juror. 
If  you  make  such  a  dissection  of  the  evidence  as  is  really 
helpful  to  a  finding,  you  will  receive  attention ;  the  more 
surely,  because  of  your  animation  and  avoidance  of  ex- 
cessive repetition  or  dilution.  You  should  not  delay  with 
reasoning  too  refined  or  deep,  for  the  juror  usually  looks 
for  a  short  and  easy  road.  We  may  sum  up  the  section 
by  saying  that  you  are  to  reason  and  not  to  declaim,  to  be 
both  temperate  and  animated,  and  to  proceed  as  rapidly 
as  you  can  to  have  the  jury  understand  you  and  be  duly 
indoctrinated  in  your  views. 


ARGUMENT.  383 

§  529.  It  is  a  common  fault  of  even  experienced  lawyers 
to  give  the  rein  to  censure  of  the  opposite  side,  —  the  views 
of  counsel,  the  character  of  the  other  party,  and  the  testi- 
mony of  his  witnesses.  This  is  unwise  for  several  reasons. 
The  advocate  appears,  and  he  generally  is,  too  passionate 
to  consider  the  facts  carefully.  It  opens  the  way  for  dis- 
astrous refutation,  cither  from  your  adversary  or  attentive 
jurors  when  they  talk  together.  And  lastly  we  may  men- 
tion that  it  usually  excites  an  active  sympathy  in  favor  of 
the  persons  censured.  Now  and  then  there  is  perjury  in 
witnesses  and  misdeeds  of  parties  which  ought  not  to  go 
unwhipped,  but  it  should  always  be  your  care  to  apply  the 
scourge  only  where  and  in  such  measure  as  it  is  seen  to 
be  deserved.  But  it  is  to  be  early  enforced  upon  the  trial 
counsel  that  ordinarily,  if  such  cases  are  but  presented  in 
their  real  characteristics,  they  will  of  themselves  the  more 
surely  call  for  and  receive  their  merited  execration.  And 
this  course  is  of  a  piece  with  the  custom  of  Scarlett,  who 
suggested  to  the  jury  ^vithout  their  knowing  it  what  they 
deemed  a  view  of  their  own. 

§  530.  The  trivial  and  unimportant  stubbornly  set  up 
against  you  as  cardinal  and  decisive,  absurdity  urged  with 
gravity,  the  adversary's  exaggemtion  of  his  own  evidence 
and  his  injustice  to  yours,  his  over-zealous  harangues,  are 
better  treated  with  raillery  and  banter  than  with  serious- 
ness. And  it  has  long  been  my  observation,  that  even 
fraud,  oppression,  gross  perjury,  and  all  such  heinous  acts 
as  strongly  excite  the  speaker  to  invective  and  the  hearer 
to  indignation,  are  within  the  scope  of  Horace's 

"  Ridiculum  acri 
Portius  et  melius  maguas  plerumque  secat  res  " ; 

which    we   may   translate,    "  Ridicule   often   disposes   of 


384  CONDUCT  IN  COURT. 

matters  of  weight  and  moment  better  and  more  decid- 
edly than  acrimony."  Ordinarily  the  advocate  opposed 
in  these  cases  defames  and  vilifies,  and  sometimes  with 
great  achievement ;  but  when,  as  happens  now  and  then, 
he  merely  apologizes  for  the  other  side  with  well-sus- 
tained irony,  we  note  that  he  makes  the  most  effective 
of  all  attacks.^ 

§  531.  A  witticism  often  adds  irresistible  force  to  a 
strong  point.  A  man  was  put  on  trial  charged  with  dis- 
turbing a  congregation  of  white  persons  assembled  for  the 
purpose  of  divine  worship.  Note  the  words  of  the  statute 
which  we  have  italicized.  The  prosecutor,  the  first  wit- 
ness for  the  State,  wore  a  coon-skin  cap,  and  his  dress  and 
air  were  those  of  a  frontiersman.  He  bore  the  striking 
name  of  Edward  Worshipful.  He  testified  that  while  he 
was  attending  church  at  the  time  and  place  laid  in  the  in- 
dictment, he  was  greatly  disturbed  by  certain  conduct  of 
the  defendant.  As  he  was  shaken  by  the  cross-examina- 
tion the  State's  counsel  called  some  of  the  members  of  the 
church.  They  said  that  they  saw  the  defendant  at  church, 
but  they  could  not  be  coaxed  into  proving  any  act  of  dis- 
turbance committed  by  him.  There  was  no  other  evidence. 
The  defendant's  counsel  being  entitled  to  the  last  word  in 
the  argument,  he  was  asked  by  his  adversary  to  give  notice 
of  his  positions  and  authorities  under  the  rule  of  court. 
He  answered  that  he  had  but  one,  to  wit,  that  Edward 
Worshipful  never  was  a  congregation  of  white  persons 
assembled  for  the  purpose  of  divine  worship.  Great  laugh- 
ter applauded  the  hit ;  and  the  counsel  for  the  State  sur- 
rendered. 

1  Compare  this  and  the  last  section  witli  what  we  say  in  American  Law 
Studies,  §  1187. 


ARGUMENT.  385 

§  532.  We  will  give  another  illustration.  A  lawyer 
was  arguing  that  his  client  had  not  been  identified  as  the 
person  who  had  stolen  some  cotton  from  a  house  at  night 
and  carried  it  off  by  a  particular  route,  along  which  scat- 
tered fragments  of  cotton  had  been  found  the  next  morn- 
ing. Three  witnesses  had  sworn  to  having  recognized  the 
jirisoner,  each  at  a  different  place  on  the  route.  Although 
the  cross-examination  had  drawn  out  that  there  was  no 
moon,  the  night  was  very  dark,  and  rain  falling,  and  no 
one  of  them  was  nearer  than  ten  paces  to  the  prisoner, 
and  it  had  also  led  every  one  to  make  palpably  improbable 
statements  of  having  noted  the  face,  expression,  and  gait 
of  the  prisoner,  still  the  advocate  discerned  by  the  subtile 
sense  which  often  reveals  to  us  the  dissent  of  our  silent 
listeners  that  the  jury  were  decidedly  against  him.  He 
displayed  the  irreconcilable  discrepancies  of  the  witnesses ; 
he  dwelt  upon  some  facts  which  pointed  strongly  to  a  con- 
spiracy among  them  against  the  prisoner ;  and  he  almost 
began  to  scold  when  he  urged  the  impossibility  of  seeing 
with  human  eyes  at  the  time  in  question  as  well  as  they 
pretended  that  they  had  seen.  But  each  juror  showed  in- 
creasing disagreement.^  He  suddenly  changed  his  mode 
of  approach  by  telling  the  following :  — 

1  Some  instructive  as  well  as  entertaining  stories  are  told  of  Choate's 
encounters  with  jurors  inclined  against  him. 

"On  one  occasion,  observing  by  the  manner  of  a  juryman  that  he  was 
hostile  to  his  client,  he  caught  the  man's  eye,  and  pointing  directly  towards 
him,  said,  '  I  will  make  this  point  plain,  — ^I  will  make  it  plain  even  to  you, 
sir.'  The  juryman  quailed,  and  finally  agreed  to  the  verdict  desired  by 
Mr.  Choate."  Neilson,  Memories  of  Rufus  Choate,  380,  381.  Note  his 
silent  conference  with  the  red-headed  juror.     Ibid.,  38,  39. 

But  the  most  remarkable  case  of  all  is  tlifi  ardent  and  prolonged  argu- 
ment which  at  last  converted  the  stubborn  foreman.  Whipple,  Some  Rec- 
ollections of  Rufus  Choate,  15-17  ;  quoted  by  Neilson,  124-126. 

25 


386  CONDUCT  IN  COURT. 

"  A  ftimous  Confederate  general  was  marching  his  bri- 
gade down  Lookout  Mountain  during  a  dark  and  rainy 
night  in  the  autumn  of  1863.  The  soldiers  were  every- 
where falling  upon  the  sharp  stones  in  the  wet  and  slippery 
path.  They  began  to  vent  their  wrath  upon  the  com- 
mander of  the  army.  Why  could  he  not  have  waited 
until  light,  when  they  could  see  to  pick  their  way  safely 
along  the  steep  descent?  This  was  worse  than  Egyptian 
darkness.  The  brigadier  in  good  temper  reasoned  with 
those  nearest  his  horse.  *  Boys,  boys,'  he  said,  '  it  is  not 
so  dark,  I  can  see  very  well.'  A  voice  about  six  feet  to 
his  side  replied,  '  That 's  a  damned  lie.'  *  You  disrespect- 
ful knave,'  yelled  the  general,  '  if  I  could  only  see  you  I 
would  have  you  court-martialled  and  shot  before  day.' 
The  voice  answered,  *  You  said  you  could  see.' " 

This  worked  instant  conviction  on  judge,  jury,  and  all 
the  crowd.  The  reply  of  the  State's  counsel  was  up-hiU 
progress,  and  after  a  short  speech  he  virtually  gave  up. 

§  533.  A  law  point  was  enforced  in  the  former  of  the 
two  instances  just  given,  and  a  proposition  of  fact  in  the 
second.  Each  was  a  conclusive  argument  of  itself,  and 
the  wit  but  opened  the  minds  of  the  hearers  to  take  the 
argument  in  all  its  force.  There  is  often  a  ludicrous  view 
that  vividly  brings  out  the  hidden  truth,  and  it  is  a  trump 
when  you  can  play  it. 

There  are  cases  which  can  be  saved  only  by  humor. 
Mr.  Harris's  horse-stealing  case,^  —  though  intended  as  an 
example  of  a  cross-examination  to  have  it  appear  that  the 
horse,  when  seen  by  the  witness  for  the  prosecution,  was 
running  away  with  the  prisoner,  and  consequently  had  not 
been  stolen  by  him,  —  as  it  was  the  foundation  of  a  humor- 

^  Hints  on  Advocacy,  6tli  eil.,  254-257. 


ARGUMENT.  387 

ous  speech,  may  serve  as  an  illustration.  It  is  a  great  and 
rare  consummation  of  the  advocate  to  sustain  a  cause  by 
pleasantry  and  humor  when  all  other  means  fail  him,  re- 
minding of  the  line, 

"  Solveutur  risu  tabulae,  tu  missus  abibis."  ^ 

§  534.  Wit  and  humor,  like  declamation  and  fine  speak- 
ing, are  only  effective  so  far  as  they  are  relevant  and  are 
vehicles  of  controlling  views.  Scarlett  is  to  be  heeded 
when  he  says  of  the  forensic  speaker :  — 

"  His  duty  is  to  make  such  use  of  his  facts,  and  of  the 
topics  which  his  own  imagination  may  suggest,  as  will  lead 
to  the  conviction  of  the  jury  in  favor  of  his  client.  His 
sole  object  ought  to  be  to  persuade  those  twelve  men  to 
come  to  a  specific  conclusion.  He  may  declaim  and  be 
as  amusing  as  he  can  upon  collateral  topics,  but  they  will 
not  in  the  least  help  him  to  his  object,  even  though  the 
judge  should  not  interrupt  him,  nor  will  they  command 
long  the  attention  of  the  jury,  who  are  ever  anxious  to  see 
their  way  clear  before  them  and  to  lay  aside  mere  topics 
of  amusement,  .  .  .  He  must  disdain  all  jest,  ornament, 
or  sarcasm  that  does  not  fall  directly  in  his  way,  and  seem 
to  be  so  unavoidable  that  it  nmst  strike  everybody  who 
thinks  of  the  facts." 

The  last-quoted  sentence  is  especially  to  be  emphasized. 
Where  you  disregard  its  advice  and  ramble,  either  you 
have  your  adversary  to  turn  the  tables  against  you,  or  the 
jury  who  can  separate  your  declamation  or  wit  from  the 
facts  to  follow  their  usually  strong  propensity  to  compro- 
mise by  applauding  both  sides,  —  you  with  admiration  or 
laughter,  and  the  adversary  with  the  verdict. 

*  "The  accusation  will  be  abiiinlonecl  with  a  laugh,  and  you  will  go 
free."     Hor.  Sat.  II.  1.  86. 


388  CONDUCT  IN  COURT. 

§  535.  Some  lawyers  are  irritated  by  blunders  of  their 
clients  or  associates,  or  disconcerted  by  sudden  occurrences 
or  by  the  taunts  of  the  antagonist.  The  advocate  who 
l^rcserves  unruffled  temper,  coolness,  and  alertness  of  all 
his  faculties,  hardly  ever  succumbs  to  a  surprise.  He  par- 
ries the  most  sudden  blow,  or  deals  a  shrewder  one  in  re- 
turn. In  defeat  even  he  covers  all  that  can  be  saved,  and 
by  his  composure  and  skill  appears  as  victor  over  conquer- 
ing fortune.  We  give  a  few  instances  of  the  escape  of 
ready-witted  advocates  from  exigent  straits. 

§  536.  A  man  had  just  come  into  his  yard  at  night  after 
an  absence  of  several  weeks.  He  was  surprised  to  hear  a 
noisy  conversation  of  several  people  in  his  house.  He 
knocked  and  shouted  for  admittance.  He  walked  away 
from  the  steps  in  order  to  look  through  a  window.  His 
wife  at  last  opened  the  door,  and,  not  recognizing  him,  went 
towards  him  to  inquire  what  he  wanted.  A  man  came 
out,  seized  her  roughly  and  ordered  her  to  return  to  him 
in  the  house.  In  no  good  humor  before  this,  the  husband 
attacked  the  other  man  and  gave  him  several  wounds  with 
his  pocket  knife.  On  his  trial  for  assault  with  intent  to 
murder,  his  counsel  opened  the  facts  just  narrated  as  his 
defence.  The  cross-examination  of  the  prosecutor  and 
other  witnesses  for  the  State  had  made  a  good  preparation 
for  him,  and  he  had  reason  to  hope  that  the  unsworn 
statement  which  the  statute  allowed  his  client  to  make 
would  be  accepted.  But  the  defendant  when  he  went  on 
the  stand  forgot  himself,  and  thought  only  of  shielding  his 
wife.  He  told  of  his  arrival  at  home,  his  knocking,  and 
of  her  appearance.  Then  he  told  that  the  prosecutor 
rushed  out  of  the  house  towards  him,  holding  a  knife  be- 
hind him  ;   and  he  concluded,  "  Gentlemen,  I  cut  him  in 


AKGUMENT.  389 

self-defence  ;  but  I  liave  nothing  against  him."  This  was 
counter  to  the  evidence,  to  the  knowledge  by  the  public  of 
the  affair,  silly,  and  unmanly  ;  and  the  State's  counsel  com- 
pared it  with  the  opening  mentioned,  to  the  great  damage 
of  the  defendant's  cause.  The  prisoner's  counsel,  having 
the  last  word,  began  as  follows  :  "  Gentlemen,  I  am  more 
embarrassed  than  I  ever  was  in  a  trial.  In  accordance 
with  my  instructions  and  with  what  I  almost  know  to  be 
the  truth,  I  placed  the  defence  upon  the  ground  that  the 
prosecutor  was  behaving  improperly  towards  the  wife  of 
the  prisoner.  Certain  facts  had  been  proved  which  at 
least  inferentially  supported  that  defence,  and  I  expected 
to  have  you  believe  the  prisoner  when  he  stated  to  you 
the  real  truth  of  the  stabbing.  But  the  goose,  when  he 
got  upon  the  stand,  was  only  anxious  to  save  the  credit  of 
his  wife,  and  he  said  that  he  did  not  stab  the  prosecutor 
on  her  account,  but  because  the  latter  was  attacking  him. 
In  which  '  —  here  he  looked  at  the  prisoner  —  "  you  told 
a  lie,  did  n't  you  ?  "  Before  he  could  be  prevented,  the 
prisoner  answered,  "Yes,"  with  a  sudden  frankness  which 
could  not  be  disbelieved.  After  this  the  advocate  dis- 
cussed the  evidence,  maintaining  his  position  set  forth  in 
the  opening,  and  he  got  an  acquittal. 

§  537.  A  Solicitor-General  —  the  designation  in  Georgia 
of  the  official  State's  counsel  of  a  judicial  circuit  —  had 
consecutively  tried  eight  or  ten  persons  charged  with  mis- 
demeanors, and  all  had  been  acquitted.  Under  the  statute, 
each  jury  had  been  taken  from  the  same  panel  of  twenty- 
four,  —  the  State  having  four  challenges  and  the  defence 
eight.  His  strong  and  satisfactory  evidence  had  been  met 
either  by  none  at  all,  or  by  that  which  was  flimsy  and  of 
little  weight.     By  varying  his  challenges  he  had  made  trial 


390  CONDUCT  IN  COURT. 

of  every  member  of  the  panel.  In  each  case  lie  had  shown 
an  increasing  carefulness  and  attention  in  the  conduct  of 
the  evidence,  and  a  greater  earnestness  in  the  argument. 
A  verdict  had  just  been  received  with  riotous  fun  on  the 
part  of  the  counsel  for  the  several  defeiulants  and  by  many 
of  the  crowd  in  attendance.  Nothing  daunted,  our  Solici- 
tor-General selected  another  jury,  and  proceeded  with  the 
trial  of  the  only  remaining  case.  When  the  time  came  for 
his  argument  he  said,  with  cold  dignity  of  manner  :  "  Gen- 
tlemen, I  have  found  all  of  you  utterly  unfit  to  be  jm'ors, 
and  your  unfitness  has  not  been  that  of  ignorance.  From 
the  first  case  to  this  I  have  noted  your  sly  smiles,  nods, 
and  winks  to  one  another,  and  to  the  prisoners  and  their 
counsel.  Your  verdicts  can  only  perish  with  the  records 
of  the  court.  I  care  not  further  to  resist  your  manifest 
desire  to  disregard  your  oaths.  So  make  the  acquittal 
of  this  man,  whom  the  evidence  shows  to  be  guilty,  the 
capstone  of  the  monument  which  you  have  this  week 
erected  to  keep  your  perjury  in  memory." 

The  jury  found  this  defendant  guilty. 

§  538.  A  distinguished  counsel  appeared  for  the  State 
in  an  important  prosecution  in  a  county  where  he  was 
little  known.  During  the  trial,  in  common  with  nearly 
everybody  else,  he  had  become  convinced  —  to  use  a  col- 
loquialism —  that  a  jury  had  been  put  upon  him.  He 
opened  his  argument  thus  :  — 

"  I  have  been  told  by  many  who  should  know  —  and  I 
must  frankly  tell  you  that  I  believe  them — that  you  are 
here  with  no  other  purpose  than  to  acquit  the  defendant. 
jNIy  sole  object  now  is  to  convince  these  good  people  "  — 
here  he  glanced  at  the  large  audience  —  "  that  the  State 
is  justified  in  placing  the  defendant  on  trial,  that  he  is 


ARGUMENT.  391 

guilty  beyond  a  reasonable  doubt,  and  that  his  acquittal 
can  be  got  only  from  a  packed  jury." 

He  then  arrayed  the  facts  against  him  with  more  than 
the  high  degree  of  clearness  and  power  which  was  his 
wont.  His  countenance  was  turned  to  the  jury,  but  he 
never  recognized  their  presence  afterwards.  Everybody 
felt  that  he  was  keeping  his  word,  and  was  only  addressing 
the  community.  When  he  ended,  there  was  an  expression 
on  all  the  faces  among  the  crowd  which  the  dullest  could 
interpret  as  unrestricted  approval  of  the  lofty  demeanor  of 
the  advocate  and  fierce  menaca  of  the  jury.  The  latter 
deliberated  after  their  retirement  for  several  hours,  and 
came  into  court  with  a  verdict  of  guilty.  It  was  univer- 
sally thought  that  the  jury  shrank  from  the  virtuous  indig- 
nation which  they  foresaw  that  an  acquittal  would  excite. 

§  539.  The  common  prejudices  call  for  a  word  of  spe- 
cial treatment.  As  Mr.  Harris  says,  "  Intelligence  and 
prejudice  are  the  two  master  influences  on  the  jury."  ^ 
There  are  popular  notions  and  beliefs  —  many  of  them 
more  or  less  irrational  —  wdiich,  as  you  know,  color  impor- 
tant parts  of  your  case  to  ordinary  jurors.  Their  friend- 
ships to  particular  persons,  the  good  or  bad  standing  of 
well-known  people,  whether  parties  or  connected  by  in- 
terest or  bias  or  as  witnesses  with  one  side,  the  general 
attitude  of  the  community  towards  sectional  and  political 
questions,  sympathy  with  the  claims  of  women,  the  unpop- 
ularity of  rich  corporations,  especially  railroads,  are  a  few 
examples  of  feeling  and  emotion  which  often  blind  the 
judgment  of  jurors,  and  even  judges.  If  they  are  favor- 
able to  your  side,  generally  you  may  leave  them  to  com- 
mand themselves,  and  when  they  nmst  be  aroused  it  had 

^  Hints  on  Advocacy,  6th  ed.,  7. 


392  CONDUCT   IN   COURT. 

better  be  by  sly  and  indirect  than  open  appeal.  You 
should  hardly  ever  count  surely  upon  them,  for  you  can 
never  know  when  something  may  occur  to  excite  the  no- 
bler part  of  human-  nature  into  dominance.  Your  avowed 
reliance  upon  them  may  either  cause  a  damaging  recoil,  or 
prepare  the  jury  for  a  potent  invocation  of  justice  by  your 
adversary  or  an  impressive  warning  from  the  court. 

The  most  difficult  task  is  in  dealing  with  hostile  preju- 
dices. Sometimes  they  need  to  be  combated  directly,  but 
often  it  is  right  to  ignore  them ;  it  is  usually  bad  when 
they  are  very  active  to  deprecate  them  with  earnestness, 
as  that  is  calculated  to  call  them  out  in  greater  strength. 
Discrimination  is  a  special  talent  of  the  lawyer,  and  by 
selecting  for  presentation  certain  of  your  unobjectionable 
facts,  and  abandoning  those  that  are  practically  unmain- 
tainable, you  may  shift  your  case  out  of  the  aim  and  shot 
of  these  doughty  enemies,  and  even  secure  allies  of  other 
powerful  prejudices. 

§  540.  In  conclusion  upon  our  present  topic,  we  say 
that  you  should  avoid  a  tendency  to  build  on  the  lower 
passions  and  feelings.  Such  a  tendency  when  indulged 
goes  from  bad  to  worse.  It  will  make  you  hard-hearted 
and  one-sided,  of  only .  occasional  efficiency,  and  utterly 
unfit  you  for  performing  the  high  feats  which  now  and 
then  distinguish  your  humbler  brethren.  The  speaker 
who  never  leaves  the  region  of  charity,  and  has  thereby 
learned  the  secret  of  opening  the  hearts  of  his  hearers  to 
unpopular  right  and  justice,  is  always  the  refuge  of  clients 
and  the  worship  of  the  bar. 

§  541.  We  have  given  no  place  yet  in  the  chapter  to 
the  special  consideration  of  the  emotions,  although  we 
have  really  had  much  to  do  with  them.     We  can  now 


ARGUMENT.  393 

easily  finish  the  subject.     Tlie  most  important  thing  re- 
maining to  be  said  is,  that  nearly  every  case  excites  its  ap- 
propriate feeling,  which  may  or  may  not  be  rightly  treated 
by  the  advocate.     A,  a  merchant  in  a  country  town,  was 
an  agent  to  sell  a  fertilizer  manufactured  by  a  company  in 
a  distant  State.     He  failed,   but  just  before  his    failure 
sold  a  large  quantity  of  the  fertilizer  to  B,  a  relative.     The 
company  brought  an  action  against  B,  upon  the  theory 
that  the  sale  was  fraudulent.     On  the  trial  the  plaintiff 
perforce  called  both  A  and  B,  and  the  hardest  squeezing 
in  what  was  really  a  cross-examination  of  his  own  witnesses 
brought  out  that  A  was  owing  B  for  borrowed  money  an 
amount  about  equal  to  the  value  of  the  fertilizer,  and  that 
tiie  acquittance  of  this  debt  was  all  that  B  paid.     It  was 
pretended  that  A's  agency  —  which  had  been  advertised 
and  posted  for  over  a  year  —  was  not  known  to  B,  and 
that  the  latter  had  no  suspicion  of  the  failure,  which  oc- 
curred in  two  days  afterwards.     B  was  made  to  admit 
that  he  was  a  planter,  living  in  the  county,  that  the  quan- 
tity of  the  fertilizer  was  two  or  three  times  more  than  was 
needed  for  his  plantation,  and  that  he  had  never  bought 
any  fertilizer  except  for  his  own  use.     On  the  issue  sub- 
mitted, whether  or  not  B  was  aware  of  the  agency  when 
he  bought,  he  seemed  to  have  the  advantage.     The  jury 
was  one   of  planters,  who  were  at  the   time   somewhat 
prejudiced  against  the  plaintiff  because  there  had  been 
extensive  sale  in  the  community  of  spurious  and  adulter- 
ated articles  under  the  name  of  fertilizers.     The  defendant 
had  put  in  no  evidence,  and  thus  he  had  the  last  argu- 
ment.    The  counsel  for  the  plaintiff  had  learned  that  A 
was  also  a  cotton  factor,  and  that  some  of  the  planters  of 
the  county  whose  cotton  was  on  sale  with  him  had  suf- 


394  CONDUCT  IN  COURT. 

fercd  by  his  failure ;  and  further,  that  tlic  failure  was  re- 
garded as  fraudulent.  From  this  he  took  his  cue.  lie 
said :  "  Gentlemen,  suppose  that  a  planter  had  delivered 
his  crop  to  a  merchant  in  this  town  as  his  factor.  Having 
no  immediate  need  for  money  and  expecting  a  favorable 
change  in  the  market,  he  gives  no  instructions  for  immedi- 
ate sale.  Suddenly  he  hears  that  his  factor  has  failed. 
Coming  to  town  to  look  after  his  interest  he  learns  that  a 
cousin  of  the  merchant,  to  whom  the  latter  was  largely 
indebted,  got  possession  of  his  cotton  the  day  before  the 
failure,  and  that  the  factor  owed  many  others,  not  one  of 
whom  was  paid.  The  cousin  had  never  bought  any  cotton 
before  except  some  odds  and  ends  now  and  then  to  make 
out  a  full  bale.  Supposing  that  planter  to  be  in  the  box, 
I  ask  him,  Would  you  credit  the  cousin  protesting  that  he 
was  not  expecting  the  failure,  and  that  he  believed  the 
cotton,  when  he  received  it,  was  the  property  of  the 
factor,  —  of  a  man  whose  only  business  with  cotton  was 
to  sell  it  on  commission  ? " 

This  was  all.  The  counsel  in  reply  struggled  with  the 
net  thus  cast  upon  him,  but  became  the  more  enmeshed 
the  longer  he  struggled,  until  at  last  he  was  bound  hard 
and  fast.  The  jury  retired  only  for  form's  sake.  There 
was  no  attempt  made  to  set  aside  the  plaintiflF's  verdict. 

§  542.  The  most  common  mistake  made  by  the  would- 
be  orator  is  that  he  can  of  himself  raise  a  tide  or  breeze  of 
feeling  to  carry  him  safely  into  port.  He  can  no  more  do 
this  than  he  can  manufacture  proofs  or  legal  provisions  by 
hocus-pocus.  The  extreme  of  his  invention  is  to  find  his 
suasive  topics  in  the  evidence.  The  shining  effusions  of 
the  advocate,  from  the  play  of  banter  and  raillery  to  fer- 
vid invective  or  melting  pathos,  are  cogent  only  so  far  as 


ARGUMENT.  395 

they  are  but  the  hmguage  of  the  real  facts,  the  rhetoric 
and  ajsthetics  of  the  case  iu  perfect  union  with  its  sound 
logic. 

The  latter  is  first  to  be  found.  And  when  found,  ad- 
dressing only  the  understanding,  as  it  does,  it  is  often  dry 
and  soporific.  When  the  missing  lialf,  that  is,  the  revela- 
tion of  the  subject  to  our  hearts,  is  joined,  the  two  in  their 
union  become  the  perfection  of  speech,  satisfying  the  hearer 
both  in  conviction  and  conscience. 

§  543.  A  side  is  often  argued  by  several  counsel.  It 
is  customary  to  give  the  last  speech  to  the  senior  or  leader. 
An  associate  following  another  should  supply  his  omissions 
and  avoid  repeating  wliat  he  has  said.  The  mission  of  each 
speaker  is  to  find  the  exact  place  open  for  him  and  to  ad- 
dress himself  to  the  questions  which  need  consideration. 
The  discussion  has  wrought  nmch  effect  upon  you.  What 
you  deemed  your  surest  points  you  have  to  abandon,  while 
there  is  compensation  in  finding  that  ground  which  you 
feared  was  too  weak  to  be  held  is  now  proof  against  all 
attack.  And  the  actual  issues  have  become  far  more 
sharply  outlined  than  they  were  in  your  anticipation  be- 
fore the  trial.  The  best  possible  verdict  which  you  had 
shaped  to  yourself  at  the  close  of  the  evidence,  you  must 
now  modify  by  asking  for  more  or  less  of  something  else, 
in  whole  or  detail.  If  you  have  an  able  adversary  and 
your  mind  is  susceptible,  as  it  ought  to  be,  of  just  impres- 
sion, his  searching  inquiry  will  almost  necessarily  alter 
your  opinion  of  much  on  both  sides  'of  the  case.  You  are 
not  to  reply  to  your  associate.  When  you  differ  witli  him 
you  should  advance  your  view  as  an  independent  one,  worth 
considering  along  witli  tlie  other.  Where  one  comes  after 
several  OT)posing  speakers  he  can   sometimes  accomplish 


396  CONDUCT  IN  COURT. 

groat  things  by  discarding  all  doubtful  evidence  and  bas- 
ing his  entire  claims  upon  that  which  is  undisputed  or  not 
seriously  questioned.  A  striking  example  is  afforded  by 
the  argument  of  Copley  in  the  Queen's  case.^ 

We  close  the  section  by  saying  that  the  duty  of  each 
speaker  is  to  keep  on  the  tide  of  the  discussion.  He  docs 
not  perform  the  duty  if  he  merely  produces  what  has 
already  been  said,  and  it  is  a  like  waste  of  energy  if  he 
belabor  other  points  than  those  which  the  evidence  and 
previous  argument  have  brought  into  contemplation,  or 
which  have  been  overlooked  while  they  need  attention. 
Nor  do  we  say  that  he  must  deal  entirely  in  original  views. 
He  may  often  satisfy  every  need  of  his  case  by  giving 
nothing  more  than  a  new  presentation  of  positions  already 
urged. 

§  544.  The  policy  of  long  or  short  speaking  is  often 
mooted.  It  must  be  remembered  that  some  men  give 
themselves  out  fully  in  concise  language,  while  there  are 
some  who  can  be  intelligible  only  by  diffuseness.  And 
there  are  many  cases  which  can  be  rightly  presented  in 
little  time,  while  there  are  others  —  not  so  numerous  by 
far  as  the  class  last  mentioned  —  which  demand  multifa- 
rious and  extended  treatment.  As  a  general  rule  you 
should  be  as  short  as  is  compatible  with  complete  commu- 
nication of  the  decisive  views  and  their  lodgment  in  the 
minds  of  your  hearers.  There  is  not  only  something  which 
ought  to  be  said,  but  it  is  also  to  be  clinched.  An  old  au- 
thority who  inclines  to  long  speaking  confesses  that  brevity 
is  to  be  observed  when  the  cause  permits,  but  he  pro- 
nounces it  collusion  with  the  adversary  for  you  to  leave 
unsaid  what  ought  to  be  said,  and  the  same  to  touch  has- 

1  Trial  of  Queen  Caroline,  American  ed.,  Vol.  11.   §  456  et  seq. 


ARGUMENT.  397 

tilj  and  cursorily  on  that  wliicli  should  be  inculcated, 
driven  in,  and  repeated.^  A  versatile  speaker  who  has  the 
talent  of  condensation  \\ill  impart  the  governing  considera- 
tions upon  each  head  in  a  few  sentences,  sending  them 
home  by  striking  illustration,  and  another  with  the  gift  of 
a  different  style  will  acconi[)lisli  his  end  by  a  wider  course, 
impressing  by  amplification,  and  often  even  by  persistent 
repetition  of  strong  points,  as  Fox  used  to  do  in  the  House 
of  Commons.  You  must  instinctively  discern  when  you 
are  losing  attention  either  by  excessive  compression  or 
dwelling  too  long  on  a  particular,  when  you  can  generally 
recover  it  by  changing  your  style  or  going  to  something 
else. 

The  last  that  we  have  to  say  in  this  section  is  that  the 
true  mean  should  always  be  labored  after :  the  advocate 
who  is  prone  to  believe  his  hearers  can  leap  to  conclusions 
with  him  had  better  study  a  little  more  of  patience  and 
copiousness,  and  he  whose  propensity  is  to  fulness  and 
exhaustiveness  should  strive  after  the  excision  of  useless 
presentation  and  discussion, 

§  545.  The  greatest  triumph  of  a  speech  is  that  it  be 
unanswerable  by  the  adversary,  the  judge  summing  up, 
or  the  most  intelligent  jurors  in  their  deliberations.  It 
is  usually  won,  not  by  positiveness  and  over-confidence, 
but  by  a  thorough-going  comparison  of  the  rival  proofs 
and  positions,  and  an  inoffensive  exhibition  of  your  pre- 

1  "  Quam  [sc.  brevitateni]  ego  cnstodiendam  esse  confiteor,  si  causa  per- 
niittat  :  alioqni  praevaricatio  est  transire  diceiuia,  praevaricatio  etiam  cur- 
sini  et  breviter  attiiigei-e  quae  sunt  inculcanda,  infigenda,  repetenda."  Plin. 
Ep.  I.  20.  —In  tliis  letter  Tacitus  is  consulted  whether  a  long  or  short 
forensic  speech  is  better.  Though  tlie  discussion  is  more  from  the  stand- 
point of  the  rhetorician  than  that  of  the  modern  lawyer,  it  is  worth  consid- 
ering for  some  of  its  just  views. 


398  CONDUCT   IN   COUKT. 

ponderance.  If  you  have  forgotten  iiotliing  which  sliouhl 
be  put  in  the  balances ;  if  you  have  been  prudently 
moderate  in  demanding  credit  for  your  propositions  and 
denying  it  to  those  of  the  opponent,  overstating  the  re- 
sources of  the  other  side  and  yet  fairly  overcounting  them 
by  your  own  understated ;  if  you  have  given  no  vantage 
by  excursion,  illustrations  that  do  not  fit  exactly,  or  wit, 
humor,  and  declamation  which  are  foreign,  and  not  merely 
feathers  to  make  your  arrows  of  argument  fly  straight ;  if 
you  have  not  been  too  hurried  or  tedious,  and  if  you  have 
preserved  throughout  the  right  tone,  aggressive  or  depreca- 
tory, lofty  or  conciliatory,  etc. ;  —  when  you  close  your  suc- 
cess is  generally  assured  with  an  honest  jury,  even  if  you 
are  to  be  replied  to  by  a  consummate  advocate,  always 
ardent  and  impressive  and  equally  polished  and  ornate  in 
his  premeditated  and  extempore  passages.^  This  success 
is  not  your  victory,  but  that  of  the  truth  and  right  of  the 
case. 

§  546.  We  ought  to  have  advised  you  in  an  earlier  sec- 
tion that  sometimes  it  is  better  to  forego  argument.  If 
you  have  done  your  whole  duty  and  brought  out  all  the 
case  of  the  client,  and  yet  the  evidence,  or  the  law,  or  both, 
are  so  clearly  against  him  that  all  hope  is  gone,  you  should 
surrender.  Argument  is  useless.  You  should  not  desire 
to  succeed  here  if  you  could.  And  now  and  then  your 
case  is  so  strong  and  that  of  the  adversary  so  bad  that  he 
will  offer  to  dispense  with  argument.  I  note  that  argu- 
ment is  too  often  insisted  upon  even  by  that  side  which 
has  nothing  to  gain  by  it. 

^  "  Audivi  causas  agenteiii  acriter  et  ardenter  nee  minus  polite  et  ornate, 
sive  meditata  sive  subita  profen-et."  Pliu.  Ep.  I.  16.  (The  author's  eu- 
logy of  Saturninus.) 


ARGUMENT.  399 

§  547.  Never  overrate  the  power  and  influence  of  foren- 
sic speaking.  It  is  but  rarely  the  province  of  the  advocate 
to  do  more  than  show  that  he  is  already  entitled  to  his 
demand.  But  there  is  often  conduct  of  cases  upon  the  as- 
sumption that  an  ingenious  speech  may  blind  the  jury  and 
hoodwink  the  judge.  Judges  are  sometimes  surprised  into 
wrong  decisions,  and  juries  duped  into  mistaken  findings ; 
but  these  occurrences  are  not  so  frequent  as  those  may 
believe  who  have  never  carefully  averaged  results  of  trials 
and  arguments. 

§  548.  In  the  palmy  days  of  Grecian  and  Roman  elo- 
quence, the  sway  of  orators  was  almost  infinitely  stronger 
than  it  is  now.  To  understand  their  fame  we  must  rec- 
ollect that  their  habitual  feats  were  ^vith  the  feelings 
and  emotions  rather  than  with  the  judgment.  The  tricks, 
deception,  and  the  excitation  of  the  lower  passions  by 
speaking,  as  Shakespeare  exemplifies  in  Antony's  making 
turncoats  of  the  Roman  mob  on  the  spot  and  then  tri- 
umphing to  himself  over  his  achievement,  are  no  longer 
potent.  Our  Pinkneys  and  Websters,  having  the  fullest 
and  most  precise  and  accurate  knowledge  of  their  cases, 
conWnced  the  understanding  far  more  than  they  aroused 
the  feelings.  And  the  reader  of  the  far-famed  speeches  of 
Erskine  sees  that  his  power  was  in  his  mastery  of  his  case. 
We  have  already  called  attention  to  the  careful  record  of 
the  testimony  made  by  Choate,  and  his  industrious  revision 
of  his  notes  every  night  during  the  trial. 

§  549.  The  secret  of  good  speaking  and  even  of  elo- 
quence is  in  due  attention  to  those  duties  of  preparation, 
and  of  the  conduct  of  the  trial,  which  we  have  treated  at 
length.  It  is  only  now  and  then  that  you  win  by  a  speech 
alone.     The  narrowing  province  of  eloquence  at  the  bar  is 


400  CONDUCT  IN   COURT. 

ill  the  cases  where  public  feeling  and  sympathy  are  opposed 
to  justice.  For  success  in  these  difficult  cases  we  can  give 
no  sure  recipe.  Courage,  persistence,  and  the  most  careful 
preparation,  demonstrating  the  right  over  and  over,  should 
precede  the  speech.  In  the  common  run  of  cases  one  law- 
yer of  fair  speaking  ability  is  about  as  effective  as  another. 
But  there  are  some,  such  as  those  just  described,  Mdiich 
should  be  argued  by  the  best  speaker  accessible.  Any 
sound  and  cool-headed  lawyer  will  know  how  to  select 
him. 

§  550.  The  motto  of  the  advocate  should  be  to  fail  in 
no  good  case.  It  was  high  praise  bestoAved  on  the  great 
lawyer  when  it  was  said  of  him  that  he  could  not  win  a 
bad  nor  lose  a  good  one.  No  advocate  should  ever  throw 
off  his  allegiance  to  the  law.  He  is  a  lawyer,  and  even 
when  defeated,  if  the  law  is  administered,  he  should  re- 
joice. Lord  Campbell's  picture  of  the  King's  Bench  under 
the  auspices  of  Chief  Justice  Abbott,  is  that  of  almost 
ideal  perfection.     He  says  :  — 

"  Before  such  men  [Littledale,  Bayley,  Holroyd,  besides 
the  Chief  Justice]  there  was  no  pretence  for  being  lengthy 
or  importunate.  Every  point  made  by  counsel  was  under- 
stood in  a  moment,  the  application  of  every  authority  was 
discovered  at  a  glance ;  the  counsel  saw  when  he  might  sit 
down,  his  case  being  safe,  and  when  he  might  sit  down, 
all  chance  of  success  for  his  client  being  at  an  end.  I  have 
practised  at  the  bar  when  no  case  was  secure,  no  case  was 
desperate,  and  when,  good  points  being  overruled,  for  the 
sake  of  justice  it  was  necessary  that  bad  points  should  be 
taken  ;  but  during  that  golden  age  law  and  reason  pre- 
vailed ;  the  result  was  confidently  anticipated  by  the  know- 
ing before  the  argument  began,  and  the  judgment  was 


1 


ARGUMENT.  401 

approved  by  all  who  heard  it  pronounced,  including  the 
vanquished  party.  Before  such  a  tribunal  the  advocate 
becomes  dearer  to  himself  by  preserving  his  o^vn  esteem, 
and  feels  himself  to  be  a  minister  of  justice,  instead  of  a 
declaimer,  a  trickster,  or  a  bully.  I  do  not  believe  that  so 
much  important  business  was  ever  done  so  rapidly  and  so 
well  before  any  other  court  that  ever  sat  in  any  age  or 
country." 

§  551.  Of  course  zeal  for  our  clients  will  often  pull  the 
most  cool-headed  away  from  the  apparent  right  and  jus- 
tice of  the  case.  But  the  advocate  should  so  bear  himself 
that  he  can  feel  at  the  close  of  his  career  that  in  all  of  his 
arguments  he  has  been  —  to  use  Lord  Camj)beirs  words 
again  —  "a  minister  of  justice,  instead  of  a  declaimer,  a 
trickster,  or  a  bully."  It  is  not  required  of  him  to  blacken 
good  character,  pervert  truth,  and  crown  wrong.  His  influ- 
ence and  sway,  even  in  speaking,  will  grow  with  increasing 
years,  if  his  hearers  know  that  he  says  only  what  he  has 
good  reason  for  believing.  There  is  nothing  which  can  van- 
quish, in  the  average  of  cases  at  the  bar,  accurate  insight 
coupled  with  perfect  honesty.  He  who  from  first  to  last 
of  every  trial,  even  the  longest,  never  gets  the  minutest 
detail  awry,  who  neither  suppresses  nor  misstates,  and  who 
goes  over  all  the  proof  and  gives  its  substance  so  correctly 
that  no  man  of  sufficient  mind  to  understand  it  can  dispute 
his  representation,  is  a  dangerous  advocate  at  nisi  prius. 
He  is  soon  found  out  where  he  practises,  and  court, 
jury,  and  bar  begin  to  lean  on  his  superior  powers.  The 
most  skilful  adversary  may  have  the  last  word  to  the  jury, 
but  at  the  first  misstatement  of  material  testimony  the 
spell  and  charm  of  oratory  are  broken  under  the  inevitable 
and  irresistible  correction. 

26 


402  CONDUCT  IN  COUKT. 


CHAPTER  XIV. 


NEW   TRIAL   AND   APPEAL. 


§  552.  After  the  argument,  you  will  diligently  note 
the  instructions  of  the  court.  If  the  verdict  is  adverse, 
you  will  see  if  there  is  reason  to  arrest  the  judgment.  But 
our  pleading  is  fast  becoming  so  untechnical  and  inartifi- 
cial that  the  motion  in  arrest  has  almost  disappeared  save 
in  criminal  practice.  You  will  next  consider  whether 
you  will  move  for  a  new  trial.  Here  you  should  exercise 
the  same  deliberation  which  we  advised  you  to  use  over  a 
case  offered.  The  courts  lean  strongly  against  new  trials  ; 
and  you  must  show  some  material  and  well-grounded  com- 
plaint before  you  can  hope  to  get  another  hearing.  Your 
client  will  be  controlled  by  you,  and  it  will  generally  be 
right  for  you  to  discourage  him  unless  you  see  that  the  ver- 
dict is  really  wrong.  Sometimes  the  evidence  is  so  mixed, 
and  the  truth  so  doubtful  in  other  respects,  or  the  forensic 
collision  and  sifting  have  changed  the  views  of  both  sides, 
showing  that  from  misconception  the  case  has  not  been 
really  presented  on  its  merits,  that  it  is  proper  to  get  a 
new  trial  on  any  ground  possible,  though  it  be  purely 
technical  and  dilatory.  And  oftentimes  you  have  been 
unexpectedly  pushed  into  trial,  or  there  is  a  strong  and 
partiahzing  prejudice  against  your  side,  or  the  judge  enlists 
against  you,  and  life,  liberty,  or  fortune  is  in  the  scale, 


NEW  TRIAL  AND  APPEAL.  403 

and  jou  discern  that  the  precious  stake  is  in  great  peril. 
You  liave  need  of  all  your  coolness,  ingenuity,  and  quick- 
ness. Your  fight  will  not  be  so  much  for  the  verdict, 
almost  hopeless,  but  for  a  ground  of  self-recovery  to  wipe 
out  your  adversary's  triumph.  You  must  catch  the  court 
napping,  or  trap  the  other  side,  or  so  strengthen  your  cause 
on  some  strong  point  of  fact  or  law,  that  a  verdict  against 
you  cannot  stand. 

§  553.  You  have  kept  notes  of  the  trial,  and  have,  if  it 
was  long,  rev'ised  them  at  every  recess.  In  these  you  have 
a  record  of  your  objections  taken  to  testimony,  of  excep- 
tions to  rulings  or  action  of  the  court,  and  of  everything 
else  which  may  now  profit  you.  You  did  not  forego  your 
priWlege  of  praying  specific  instructions  from  the  court,  or 
of  requiring  his  whole  charge  to  be  in  writing,  and  now 
you  have  time  to  meditate  what  he  improperly  denied  you 
and  what  he  too  graciously  granted  your  over  eager  adver- 
sary. Nor  Avill  you  fail  to  pry  into  the  constitution  and 
beha\ior  of  the  jury,  and  avail  yourself  of  any  good  cause 
you  find.  We  must  take  it  for  granted  that  the  student 
knows  the  various  grounds  upon  which  new  trials  can  be 
had,  and  we  cannot  stop  to  enumerate  them.  It  is  our 
province,  however,  to  enforce  upon  him  the  great  advan- 
tage and  wisdom  of  an  intelligent  purpose.  We  noted  in 
our  chapter  on  Plan  of  Conduct  the  duty  of  the  lawyer 
preparing  his  case  to  have  an  eye  to  securing  a  ground 
of  new  trial,  just  as  a  prudent  general  endeavors  before 
the  battle  to  provide  himself  with  a  safe  way  of  retreat. 

§  554.  But  however  painstaking  may  have  been  your 
anticipation,  most  of  your  best  grounds  of  new  trial  will 
occur  unexpectedly.  You  must  have  the  wit  to  recognize 
them  instantly  in  order  that  you  may  not  undo  them  igno- 


404  CONDUCT  IN  COURT. 

rantly.  Thus  I  knew  a  counsel  for  a  defendant,  in  a  bill 
in  equity  trying  by  a  jury,  whose  answer  on  a  most  mate- 
rial point  had  been  met  by  but  a  single  witness,  to  refrain 
of  pur})ose  from  comment  on  the  fact  in  his  argument,  his 
reason  being  that,  had  he  suggested  the  defect,  a  reopening 
of  the  evidence  would  probably  have  been  granted  to  the 
complainant,  when  the  latter  would  have  easily  supplied 
the  measure  of  proof  necessary  to  overcome  the  answer 
under  the  rule.  This  counsel  lost  the  verdict,  got  a  new 
trial,  and  finally  succeeded  from  having  exactly  learned 
where  to  strengthen  his  proof. 

§  555.  There  is  an  art  of  having  certain  grounds,  which 
are  not  required  to  complain  as  distinctly  as  others,  of  such 
wide  implication  that  you  can  often  bring  out  of  them 
nmch  that  did  not  strike  you  at  first.  A  good  instance  is 
the  usual  statement  that  the  verdict  is  against  the  evi- 
dence, under  which,  in  your  argument,  you  may  often  make 
many  different  specifications.  Such  grounds  are  helped  by 
a  copious  report  of.  the  evidence.  I  have  known  thought- 
less counsel  to  discover  great  use  for  a  clause  of  a  docu- 
ment omitted  because  it  seemed  at  the  trial  utterly  trivial 
and  irrelevant. 

§  556.  At  your  earliest  leisure  complete  the  draft  of  the 
evidence  and  of  your  grounds,  and  at  once  procure  the 
required  authentication.  Nowhere  is  procrastination  more 
hurtful.  Only  wait  a  few  weeks  after  a  trial,  and  the 
judge  has  lost  his  notes,  or  if  he  has  been  too  lazy  to  take 
any  he  has  forgotten  everything ;  or  the  phonographic  re- 
porter, if  there  was  one,  is  out  of  the  way  and  has  the  doc- 
uments put  in  evidence,  your  adversary's  memory  is  counter 
to  yours  in  many  particulars  of  importance,  and  you  may 
have  to  confess  with  chagrin  that  a  good  case  has  been  lost 
by  your  sloth. 


NEW  TRIAL  AND   APPEAL.  405 

§  557.  While  reading  history  I  have  often  fancied  how 
eagerly  some  defeated  general  would  have  caught  at  an 
opportunity  to  renew  the  lost  battle,  with  all  his  wounded 
healed  and  his  killed  raised  from  the  dead.  Varro  would 
have  doubtless  rejoiced  to  try  Cannae  over,  certain  that  he 
could  not  be  so  terribly  beaten  again.  In  the  resjjcct  of 
a  new  trial,  litigation  has  an  attractive  diversification  to 
which  warfiirc  presents  nothing  corresponding.  Often  lib- 
erty and  right  would  win,  if.  they  could  only  have  a  new 
battle  ;  but  they  cannot  have  it.  In  forensic  contest,  on 
the  other  hand,  triumphant  wrong  is  again  and  again  sub- 
verted by  the  same  force  which  it  had  lately  vanquished. 

§  558.  Nothing  is  more  admirable  than  the  spirit  of  a 
discerning  lawyer,  who  will  not  endure  in  a  good  case  an 
oppressive  ruling  or  a  partial  verdict.  He  seems  to  know 
by  di^^nation  when  he  can  have  the  one  reversed  and  the 
other  set  aside.  After  such  a  mischance  he  no  more 
doubts  his  final  success  than  the  famous  refugee  of  old 
would  take  a  less  price  for  his  farm  because  it  was  then 
occupied  by  the  army  of  the  victorious  enemy. 

§  559.  The  books  and  a  short  experience  in  practice 
will  tell  you  when  to  dispense  ^vith  a  motion  for  a  new 
trial  and  rely  only  upon  a  bill  of  exceptions.  But  it  is 
to  be  suggested  that  you  always,  when  you  can,  give  a 
judge  opportunity  of  correcting  his  errors.  In  arguing  the 
motion,  do  your  best  by  patient  and  convincing  method  to 
show  that  he  has  erred,  and  let  him  have  time,  if  possible, 
to  reflect.  By  pursuing  this  course,  you  will  often  secure 
a  new  trial  where  otherwise  you  would  fail.  Courts  of 
error  always  attach  great  importance  to  the  action  of  the 
judge  below.  When  he  is  dissatisfied  with  the  finding 
and  sets  it  aside,  it  is  odds  that  they  will  not  disturb  his 
judgment. 


40G  CONDUCT  IN  COURT. 

§  560.  To  sum  up  :  (1.)  Have  an  eye  to  a  new  trial  in 
your  proparatiou.  The  peculiarities  of  tlic  judge,  your  ad- 
versary, and  many  otlier  things  which  you  can  reasonably 
anticii)ate,  will  be  suggestive.  (2.)  During  the  trial  be 
always  on  the  alert  to  secure  a  good  ground,  remembering 
that  Providence  helps  those  who  help  themselves.  (3.)  As 
soon  as  you  can  after  the  adverse  verdict,  —  if  you  have 
decided  not  to  succumb,  —  review  carefully  the  whole  track 
of  the  trial,  state  your  grounds  and  the  evidence,  and  have 
them  certified. 

Bear  in  mind  that,  where  your  verdict  has  been  set  aside, 
to  except  may  be  either  very  foolish  or  the  only  thing  to 
do.  The  former  is  exemplified  when  you  are  standing 
more  upon  popularity  and  sentiment  than  evidence.  Here 
you  should  refrain  from  going  to  the  court  of  errors  before 
you  have  had  at  least  two  concurring  verdicts,  and  some- 
times three  ;  otherwise  a  trenchant  criticism  of  your  evi- 
dence by  that  court  may  put  it  out  of  the  power  of 
another  jury  to  find  for  you.  But,  on  the  other  hand,  if 
your  evidence  is  strong,  and  the  grant  of  the  new  trial  is 
placed  upon  a  ground  the  concession  of  which  will  be  a 
death-blow  to  your  case,  you  must  needs  except.  Although 
there  will  hardly  be  a  reversal,  still  you  may  procure  such 
a  favorable  ruling  on  the  particular  ground  that  you  can 
hold  your  next  verdict. 

§  561.  We  urge  that  the  lawyer  always  follow  his  im- 
portant causes  to  the  court  of  errors.  He  owes  it  to  him- 
self to  learn  appellate  practice,  and  he  owes  it  to  his  client 
to  give  the  latter  the  benefit  of  his  knowledge  of  the 
record,  which  is  necessarily  superior  to  that  of  any  possible 
associate.  He  can  often  read  between  the  lines  or  give 
an  interpretation  of  diflftculty  and  save  the  case,  when  if 
he  were  absent  the  adversary  would  prevail. 


NEW  TRIAL  AND  APPEAL.  407 

§  562.  We  now  leave  the  subject  of  New  Trial  with  a 
word  or  two.  One  of  the  uses  of  the  remedy  is  to  insure 
justice,  not  only  to  parties,  but  to  lawyers.  I  am  strongly 
of  opinion  that  no  lawyer  should  submit  to  a  verdict  or 
ruling  grossly  bad,  even  if  he  must  resist  without  fee  or 
reward.  We  nmst  teach  our  equals  of  the  bar,  our  supe- 
riors of  the  bench,  and  the  public  at  large,  a  wholesome 
respect  for  our  ability  and  pluck. 

Our  next  suggestion  is  that  you  rein  yourself  in  during 
the  trial  where  you  see  you  liave  the  upper  hand,  and  that 
you  likewise  check  and  hold  back  the  judge  who  seems 
to  enlist  for  you,  so  that  you  may  afford  your  watchful 
opponent  no  opportunity  to  snatch  your  verdict  from  you. 
Choate  went  a  little  too  far  when  he  advised  getting  the 
verdict  in  any  way,  and  fighting  it  out  with  the  judges 
afterwards. 

Our  last  word  is,  that,  if  you  have  to  move  for  a  new 
trial,  you  take  all  good  points.  Of  course  the  small,  the 
little,  and  the  trivial  you  will  none  of.  But  throw  away 
none  of  your  good  chances. 

§  563.  Generally  the  young  lawyer  first  makes  his  mark 
by  showing  spirit  and  capacity  to  reverse  a  careless  or 
slighting  judge. 

If  you  have  lost  the  verdict,  wishing  you  the  talent  to 
find  strong  grounds  for  a  new  trial,  and  success  before  the 
court  of  errors  if  your  motion  has  been  denied,  and  hop- 
ing that  when  you  try  again  you  will  rout  your  adversary' 
because  of  a  new  grouping  and  presentment  of  your  case, 
we  take  our  leave  of  this  branch  of  the  subject,  for  there  is 
so  little  additional  to  say  about  Appeal  that  we  will  say 
nothing. 


408  CONDUCT  IN   COURT. 


CHAPTER  XV. 

VICTORY  AND  DEFEAT. 

§  564.  If  after  the  verdict  or  its  aflfirniance  in  the 
court  of  errors  anything  remains  to  be  done,  it  shoukl  be 
energetically  done.  Negligence  and  supineness  may  make 
triumph  empty. 

I  once  witnessed  the  trial  of  a  seduction  case  which  was 
conducted  so  well  and  argued  with  such  effect  for  the 
plaintiff  that  the  jury  found  large  exemplary  damages. 
The  successful  counsel  went  to  his  home  in  an  adjoining 
county,  and  a  few  weeks  afterwards  he  heard  that  the 
defendant  had  left  the  State.  He  hurried  back  to  the 
county  seat  where  the  case  had  been  tried,  and,  entering 
the  office  of  tlie  defendant's  lawyer,  as  soon  as  their  salu- 
tations were  over,  he  asked  where  the  defendant  was ;  to 
which  the  other  replied  that  he  had  gone  to  New  Orleans. 
Why  had  he  gone,  was  asked,  when  his  host  gravely  in- 
formed him  that  it  was  to  attend  the  General  Assembly 
of  the  Presbyterian  Church  then  in  session  in  that  city, 
and  he  reminded  his  visitor  that  the  defendant's  mother 
and  sisters  were  zealous  Presbyterians.  The  bird  had 
flown.  The  plaintiff's  lawyer  made  an  ineffectual  effort  to 
collect  his  judgment  out  of  some  property  formerly  owned 
by  the  defendant.  Had  he  ordered  the  latter  taken  in  ex- 
ecution at  once  after  he  had  entered  up  his  judgment,  he 
would  not  have  lost  his  fee,  as  he  doubtless  did. 


VICTORY  AND  DEFEAT.  409 

§  565.  When  you  are  on  the  losing  side  it  will  often 
require  great  courage  to  advise  submission  to  the  inevita- 
ble. We  have  more  than  once  before  this  reminded  you 
that  you  should  dissuade  from  all  useless  strife.  Hannibal 
was  as  great  in  influencing  his  vanquished  countrymen  to 
make  peace  with  the  Romans  as  he  had  been  at  Cannae. 
When  you  see  that  all  hope  is  over,  get  the  best  terms  you 
can,  and  control  your  client.  It  is  seldom  that  there  is 
any  real  disagreement  between  lawyer  and  client  on  this 
point.  The  trouble  is  generally  in  the  eagerness  of  the 
lawyer  to  win,  and  in  his  moral  cowardice  to  give  judicious 
but  unpalatable  advice.  We  should  know  that  we  can 
achieve  impossibilities  no  more  than  others.  The  vain 
counsel  who  believes  that  he  cau  win  any  case  is  fated  to 
meet  with  disaster  after  disaster,  and  can  never  stand  well 
with  the  practical  men  who  have  the  most  business  and 
money  for  a  lawyer. 

§  566.  We  sum  up  this  short  chapter  by  saying,  (1.) 
push  your  victories,  and  (2.)  capitulate  in  your  unmain- 
tainable cases  on  the  best  terms  to  be  had.  Be  neither  a 
party  nor  an  inflamed  partisan  ;  but  strive  to  set  to  all 
of  your  clients  an  example  of  obedience  to  law. 


FINAL  CHAPTER. 

CHARACTER   OF  THE   SUCCESSFUL  LAWYER. 


§  567.  Our  two  Books  have  been  devoted  to  enucle- 
ating and  exemplifying  the  principles  of  right  conduct  of 
litigation.  In  various  places  here  and  there  we  have  inci- 
dentally let  fall  many  hints  as  to  different  professional 
qualifications  and  traits.  It  is  now  time,  even  at  the  cost 
of  some  iteration,  to  make  a  full  portrayal  of  him  who  is 
skilfully  and  eflBciently  to  use  our  counsels  in  practice. 
We  begin  with  contrasts  between  different  legal  vocations. 

§  568.  The  consummate  practitioner  differs  from  the 
author  of  able  and  learned  law  treatises,  as  an  advanced 
farmer  from  a  profound  agricultural  chemist.  The  prin- 
ciples of  law  or  chemistry  arc  of  the  first  importance  to 
the  legal  and  scientific  author,  and  he  bends  all  things  to 
their  proper  presentation.  But  the  books  serve  the  lawyer 
only  to  gain  his  case,  just  as  the  farmer  asks  nothing  of 
Liebig  and  Ville  but  how  remunerative  crops  can  be  made. 
The  law-author  deals  with  the  general  and  abstract,  while 
the  lawyer  is  mainly  busied  with  the  special  and  concrete. 
Each  general  rule  in  the  text-book  or  the  statute  has  in 
view,  at  least  potentially,  many  cases ;  while  the  la\vyer 
is  always  engaged  upon  one  case,  and  his  standpoint,  dif- 
ferent from  that  of  the  author  and  legislator,  is  strikingly 
shown  by  the  requirement  that  acts  coupled  in  the  statute 


412    CHARACTER  OF  THE  SUCCESSFUL  LAWYER. 

by  the  disjunctive  must  be  laid  conjunctively  in  pleading. 
For  in  the  statute  the  disjunctive  distinguishes  indepen- 
dent cases,  but  in  the  indictment  it  disconnects  parts  of 
the  same  case  and  deprives  the  allegation  of  each  one  of 
certainty.  The  judge,  hearing  both  sides  but  confined  to 
the  case,  is  nearer  by  far  to  the  lawyer  than  to  the  author. 
Judge  and  la^vyer  decide  legal  questions  in  the  same  way 
and  by  the  exercise  of  the  same  faculties.  The  lawyer 
must  be  quicker  of  apprehension  and  more  inventive. 
Not  only  must  he  decide  on  a  case  presented,  but  in  its 
conduct  he  is  also  to  do  something  else  which  never 
troubles  the  judge :  he  has  to  select  the  questions  to  pre- 
sent. He  selects  and  argues,  and  then  the  judge  argues 
—  or  considers  —  and  decides.  Both  are  inferior  to  the 
great  law-author  in  deep  and  scientific  knowledge  of  the 
law,  but  they  have  a  ready  command  of  the  legal  princi- 
ples ordinarily  applied  where  the  one  presides  and  the 
other  practices.  These  principles  they  use  as  tools,  and 
their  expertness  with  them  is  often  astonishing.  No  au- 
thor has  ever  given  a  complete  enumeration  and  exposi- 
tion of  these  legal  principles  of  common  application ;  but 
we  know  that  their  number  is  not  infinite.  While  no  man 
can  be  said  to  possess  the  %vhole,  yet  there  are  members  of 
the  bar  leading  in  all  important  causes,  by  the  spontaneous 
homage  of  every  associate,  and  judges  born  to  decide 
aright,  who  do  nearly  understand  thoroughly  the  most  of 
them.  Note  such  a  lawyer  trying  a  case.  Every  excep- 
tion or  point  that  he  takes,  even  if  not  well  taken,  he 
supports  by  some  principle  which  you  cannot  controvert, 
though  you  may  show  that  it  is  misapplied.  It  would 
frequently  puzzle  him  were  you  gravely  to  demand  of  him 
authoritv  for  a  rule  which  he  assumes.     Such  rules  of  law 


CHARACTER  OF  THE   SUCCESSFUL  LAWYER.     413 

- —  tliat  is,  those  controlling  tho  average  of  cases  —  arc 
allowed  as  soon  as  cited,  and  the  superiority  of  the  practi- 
tioner is  quickness  in  seeing  which  particular  rule  decides 
the  case.  He  does  not  acquire  tliis  faculty  so  much  from 
books  as  a  great  many  believe.  He  gets  nearly  all  of  this 
readiness  in  the  law  by  practising  law.  The  books  con- 
tribute to  his  professional  education,  by  introducing  him 
to  the  rules  of  law  with  which  he  will  play  after  a  while 
as  his  counters  ;  his  easy  command  of  these  rules  is  not 
learned  from  books,  as  is  the  bulk  of  the  law-author's 
knowledge.  This  dominion  and  sway  of  common  princi- 
ples, this  practical  wisdom  in  the  law,  is  a  necessary  ele- 
ment in  the  constitution  of  the  successful  lawyer. 

§  569.  But  although  this  element  is  so  important  that 
the  lawyer  derives  his  name  from  it,  there  is  another  intel- 
lectual element  in  his  composition  of  still  more  importance, 
namely,  a  grasp  of  facts  and  details.  Details,  when  nu- 
merous, must  be  systematized  to  be  understood ;  that  is, 
they  must  be  decomposed  into  their  elements,  and  then 
the  latter  be  appropriately  arranged.  The  particulars  found 
to  be  like  one  another  are  to  be  thrown  together  into 
groups,  and  the  groups  will  be  collocated  in  rational  order. 
Take,  as  an  illustration,  an  author  at  work  digesting  a 
series  of  law  reports.  He  reads  a  case,  and,  picking  out 
the  points,  he  puts  each  one  under  its  proper  head  in  the 
accepted  vocabulary  of  the  law.  This  is  the  same  kind  of 
work  wliich  the  lawyer  must  do  with  a  particular  group  of 
facts.  Whether  they  are  the  jarring  and  clashing  testimony 
of  many  witnesses,  or  a  pile  of  conflicting  documents,  they 
nuist  be  first  rightly  read  and  next  rightly  generalized,  in 
order  that  the  laAN'yer  may  discover  what  case  they  make. 
This  is  the  talent  of  the  historian  who  reads  the  times  long 


414    CHARACTER  OF  THE   SUCCESSFUL  LAWYER. 

past  aright,  piercing  the  haze  and  fog  of  contemporary 
writers.  It  is  the  talent,  too,  of  the  scientist,  the  skill  and 
glory  of  Newton  and  Herschel.  To  analyze  aright  and 
then  classify  aright  is  the  talent  that  marks  them  all  in 
each  vocation.  The  lawyer  develops  it  more  and  more, 
and  he  cultivates  it  more  exclusively.  You  will  find  him 
as  he  is  gradually  shooting  up  into  leadership  studying  law 
less  in  the  books  as  a  daily  set  exercise,  and  gi\ing  his  best 
hours  to  familiarizing  himself  with  the  particulars  of  his 
cases.  He  will  often  make  an  elaborate  preparation  with- 
out looking  into  any  law  more  recondite  than  a  few  of  the 
local  statutes,  or  some  of  the  local  decisions  which  he  has 
found  annotated  upon  the  former.  The  older  he  grows, 
the  less  of  books  he  cites,  even  to  the  court  of  last  resort. 
When  you  contemplate  him  closely,  you  will  see  that  his 
great  business  is  not  with  law  as  a  science,  but  with  the 
facts  and  details  of  his  cases,  which  when  he  has  properly 
grasped  and  presented  he  has  many  times  no  need  at  all 
for  books. 

§  570.  Before  we  move  on,  we  will  briefly  recapitulate. 
There  are  two  mental  elements  of  the  lawyer  :  one  a  head 
for  the  law,  and  the  other  a  head  for  facts.  He  must  have 
a  facility  in  the  application  of  commonly  used  rules.  He 
must  not  oidy  be  prompt  to  think  of  the  right  rule,  but  he 
must  be  able  both  quickly  to  apply  it  and  to  demonstrate 
the  soundness  of  the  application.  But  the  other  constit- 
uent is  the  leading  one.  It  is  the  power  which  teaches 
what  case  is  made  by  the  facts.  The  la^vyer  who  has  this 
good  gift  often  condescends  to  get  his  citations  from  an 
inferior„  There  are  many  jackals  in  the  profession  who 
hunt  down  and  capture  the  needed  authority  for  the  lions 
of  facts. 


CHARACTER  OF   THE   SUCCESSFUL  LAWYER.    415 

§  57L  The  intellectual  root  which  branches  out  into 
both  of  the  talents  which  we  have  been  describing  is  in- 
sight. Sometimes  we  call  it  acumen.  This  vision  of  the 
truth,  either  of  facts  or  of  the  controlling  legal  principle, 
is  the  connnunity  of  the  two  faculties  of  the  lawyer.  And 
this  intuitive  perception  has  long  been  deemed  an  indis- 
pensable of  all  genius.  Lord  Bacon  recognized  its  domi- 
nance when  he  said,  "  Prudens  interrogatio,  quasi  dimi- 
dium  scicntiae,"  which  he  translated,  "  A  faculty  of  wise 
interrogating  is  half  a  knowledge."  And  he  cited  a  great 
authority  when  he  proceeded  :  "  For  as  Plato  saith,  '  Who- 
soever seeketh  knoweth  that  which  he  seeketh  for  in  a 
general  notion,  else  how  shall  he  know  it  when  he  hath 
found  it  ? ' "  When  Napoleon  said  that  the  art  of  war 
was  all  in  being  the  stronger  on  a  certain  point,  he  implied 
for  the  general  ability  to  see  what  was  the  decisive  point, 
and  also  how  he  could  be  the  stronger  on  that  point.  The 
law}'er  must  likewise  discern  the  key-positions  of  the  case, 
and  he  must  further  see  how  he  can  have  the  ascendency 
on  these.  This  intellectual  vision  precedes  any  action,  for 
it  dictates  action. 

§  572.  We  give  a  case  told  by  Mr.  Bishop,  as  an  exam- 
ple of  the  importance  of  accurate  insight. 

"  Some  years  ago,  a  deputy  collector  in  one  of  our  cus- 
tom-houses was  bribed,  and  he  procured  permits  for  the 
landing  of  large  quantities  of  foreign  goods,  on  which  du- 
ties were  not  in  fact  paid.  The  permits  bore  the  genuine 
signature  of  the  proper  officer,  they  were  in  all  respects 
correct  in  form,  and  all  the  formalities  attending  any  case 
of  regularly  passing  goods  through  the  custom-house  were 
gone  through  with.  After  the  fraud  was  discovered,  some 
of  the  goods  were  seized  by  the  collector ;  but  on  looking 


41 G     CHARACTER  OF   THE   SUCCESSFUL  LAWYER. 

into  the  statutes  he  found  no  one  which  seemed  to  meet 
the  case.  There  was  an  enactment  against  hmding  goods 
witliout  a  permit,  and  there  were  various  provisions  for 
particular  irregularities  by  the  importer  in  passing  his 
goods  through  the  custom-house.  The  collector,  therefore, 
after  getting  all  the  legal  advice  he  could,  and  finding,  as 
it  was  supposed,  no  statute  to  meet  the  case,  gave  back 
the  goods  he  had  seized,  and  concluded  nothing  could  be 
done.  Some  of  the  goods  were  taken  to  other  collection 
districts,  and  efforts  were  made  to  hold  them ;  the  vari- 
ous legal  advisers  of  the  government,  and  other  laAvyers 
called  in,  had  consultations,  and  it  was  determined  defi- 
nitely that  nothing  could  be  done. 

"  In  this  state  of  things,  some  dealers  in  the  same  kind  of 
goods,  finding  they  were  undersold  by  the  holders  of  goods 
on  which  no  duties  had  been  paid,  went  to  counsel  who 
had  not  been  in  the  other  consultations.  These  persons 
were  thereupon  advised  that,  if  the  collector  would  make 
a  fresh  seizure,  the  goods  could  be  held.  This  was  done. 
When  the  case  came  before  the  court,  it  was  seen  that  the 
new  counsel  had  presented  it  as  an  ordinary  one  of  smug- 
gling, just  as  though  there  had  been  no  permit  issued  ;  in 
other  words,  the  very  existence  of  the  permit  was  ignored. 
And  when  the  defendant  brought  forward  the  permit  for 
his  protection,  it  was  simply  shown  to  have  been  procured 
by  the  fraud  of  bribing  the  deputy  collector,  rendering  it 
in  law  a  nullity.  ...  As  soon  as  this  legal  principle  was 
suggested,  the  whole  scene  was  made  light.  The  result 
was,  that  without  further  difficulty  a  decision  was  obtained 
from  the  court  pronouncing  the  goods  to  be  smuggled. 
The  goods  in  the  other  districts  were  also  seized  and  con- 
fiscated." ^ 

1  First  Book,  §§  124,  125. 


CHARACTER  OF  THE  SUCCESSFUL  LAWYER.     417 

§  573.  The  counsel  last  consulted,  to  use  the  connnoii 
colloquialism  of  the  bar,  saio  the  point  which  the  others 
had  not  seen.  And  the  case,  besides  illustrating  the  com- 
mand of  legal  rules  usually  administered  in  the  courts  which 
the  successful  practitioner  nuist  have,  also  exemplifies  tlie 
superiority  of  that  insight  or  acumen  which  is  the  main 
ingredient  in  the  mind  of  every  lawyer  born  to  lead. 
Nothing  could  be  more  familiar  and  hackneyed  than  the 
principle  which  the  triumphant  counsel  invoked.  When 
he  announced  it,  even  the  laymen  in  court  doubtless  saw 
that  he  was  right.  It  was  an  egg  of  Columbus.  And 
brightly  to  elucidate  that  which  seems  dark  and  intricate 
with  a  homely  legal  principle,  is  what  the  good  lawyer 
does  every  day.  His  superiority  is  in  seeing  that  there  is 
really  no  difficulty,  that  the  veil  hiding  the  truth  is  only 
imaginary  ;  and  he  exhibits  the  same  acuteness  in  matters 
of  evidence,  detecting  therein  a  meaning  and  potency  which 
others  overlook  until  he  chooses  to  show  them,  and  then 
for  a  while  they  can  see  nothing  else. 

§  574.  I  once  noted  in  a  trial  a  singular  obscuration  of 
the  real  question  to  both  court  and  counsel,  where  each 
counsel  was  deservedly  eminent  and  the  judge  was  one  of 
the  quickest  and  acutest  men  I  ever  knew.^  The  issue 
arose  under  a  local  statute  out  of  a  distribution  in  kind  of 
an  intestate's  estate.  One  heir,  conceiving  that  he  had  not 
received  all  of  his  share,  had  sued  the  other  in  order  to  be 
equalized.  The  defendant  relied  on  the  general  issue. 
There  was  much  testimony  on  both  sides,  and  the  prepon- 
derance of  the  evidence  clearly  established  that  the  defend- 

1  The  case  was  tried  in  the  Superior  Court  of  Oglethorpe  County,  Georgia, 
in  1857  or  1858,  Thos.  R.  R.  Cobb  and  A.  H.  Stepliens  being  the  opposing 
counsel,  and  Thomas  W.  Thomas  presiding  as  judge. 

27 


418    CHARACTER  OF  THE  SUCCESSFUL  LAWYER. 

ant's  portion  exceeded  that  of  the  plaintiff  in  value,  say 
$1,000.  The  counsel  in  their  openings  and  arguments, 
and  the  judge  in  his  instructions,  all  assumed  that  the  jury 
should  find  for  the  plaintiff  whatever  amount  the  value  of 
the  defendant's  share  exceeded  that  of  the  other.  Just  as 
the  jury  retired  an  old  layman  who  had  long  made  a  re- 
spectable figure  in  that  court  as  a  grand  juror,  and  who 
was  permitted  a  seat  inside  the  bar,  approached  the  judge 
and  laughingly  said  in  an  undertone,  "  You  have  only  put 
the  boot  on  the  other  leg."  "  Bring  that  jury  back," 
roared  the  latter  to  the  bailiff,  who  obeyed  at  once. 
"  Gentlemen,"  resumed  the  court  to  the  jury,  "  I  have 
made  a  great  mistake.  If  you  believe  that  the  defend- 
ant's share  exceeds  the  plaintiff's  in  value,  you  must  find 
for  the  plaintiff  one  half  of  such  excess."  The  jury  retired 
again,  and  soon  returned  with  a  verdict  in  accordance  with 
the  last  instructions.  This  was  a  similar  defect  of  vision 
in  the  counsel  and  the  judge  to  that  of  the  lawyers  who 
laid  their  heads  together  over  the  fraudulent  permit,  and 
it  was  remarkable  that  what  seemed  so  plain  at  last  had 
not  been  seen  from  the  first.  This  was  another  egg  which 
stood  up  on  its  broken  end. 

§  575.  E2:amples  would  be  multiplied  to  no  good  pur- 
pose. Every  lawyer's  experience  affords  multitudes.  We 
are  now  only  calling  attention  to  the  transcendent  impor- 
tance in  the  practice  of  the  law,  as  well  as  in  all  other 
human  undertakings,  of  seeing  things  right.  This  talent 
or  genius,  call  it  what  you  may,  if  coupled  with  a  prepon- 
derant force  of  will,  as  is  insisted  upon  for  the  general  in 
the  next  following  quotation,  spontaneously  exalts  its 
possessor  to  command  in  any  business  of  life  that  he  may 
make  his  own.     Themistocles  meant  to  claim  this  crown 


CHARACTER  OF  THE  SUCCESSFUL  LAWYER.    419 

for  himself  when  he  erected  near  his  house  the  private 
cliapel  "  in  honor  of  Artemis  Aristobule,  or  Artemis  of 
admirable  counsel. " 

§  576.  As  we  have  suggested  many  resemblances  of 
litigation  to  warfare,  doubtless  our  readers  have  already 
anticipated  that  he  who  conducts  the  former  is  in  many 
respects  like  him  who  conducts  the  latter.  We  add  from 
Marmont's  Spirit  of  ^Military  Institutions  his  analysis  of  the 
good  general,  laying  great  stress,  as  it  does,  upon  resolute- 
ness of  purpose  and  consequent  promptness  to  act,  —  char- 
acteristics which  are  likewise  all-important  to  the  lawyer. 

"  The  art  of  war,  considered  as  to  what  constitutes  the 
profession,  is  entirely  combination  and  calculation.  .  .  . 

"  Two  things  are  requisite  in  a  general :  intelligence  and 
firmness.  The  former,  because  without  that  there  are  no 
combinations ;  at  the  outset  the  army  is  defenceless.  The 
latter,  because  without  a  strong  and  tenacious  will  the 
execution  of  the  plans  conceived  cannot  be  assured.  But 
here  relative  qualities  govern  absolute  qualities  ;  firmness 
must  rule  intelligence.  In  this  relation  is  found  the  ele- 
ment of  success.  If  we  desired  to  estimate  by  figures  each 
of  these  fiiculties  I  should  much  prefer  a  general  possess- 
ing intelligence  as  5  and  firmness  as  10,  to  one  having  in- 
telligence as  15  and  firmness  as  8.  When  firmness  governs 
intelligence  and  mind  has  a  certain  range,  we  move  along 
towards  a  defined  aim  and  have  chances  of  attaining  it. 
When  the  reverse  is  the  case,  opinions,  plans,  and  direc- 
tion are  changed  unceasingly,  because  a  vast  intelligence 
at  every  instant  considers  the  questions  under  a  new  as- 
pect. If  force  of  will  docs  not  secure  us  from  these 
changes,  we  float  among  tlie  different  schemes,  adopting 
none  definitely,  (the  worst  feature  of  all,)  and  instead  of 


420    CHARACTER  OF   THE   SUCCESSFUL  LAWYER. 

iipproacliiiig  tlic  goal,  a  shuftiiiig  inarch  often  leads  us 
away  Iron)  it,  and  we  are  lost  in  wanderings. 

"  And  yet  the  conclusion  would  be  wi'ong  that  there  is 
no  need  of  much  mind  to  accomplish  great  ends.  A  me- 
diocre mind  is  not  to  be  found  in  any  of  the  great  generals 
of  antiquity  or  of  modern  times,  —  in  any  of  the  great  his- 
toric names  which  march  through  the  centuries  above  their 
fellows.  Alexander,  Hannibal,.  Scipio,  C?esar,  possessed 
the  highest  faculties  of  intellect.  It  was  the  same  with 
the  great  Conde,  Luxembourg,  the  great  Eugene,  Frederic, 
and  Napoleon.  But  all  these  great  men  to  a  superior  mind 
added  still  more  strength  of  character."  ^ 

§  577.  The  experience  of  every  observant  person  is  full 
of  instances  of  men  ingenious  in  counsel,  but  deficient  in 
action.  It  seems  that  Shakespeare  intended  his  Hamlet 
to  represent  that  type  of  character  where  great  minds  are 
joined  with  infirm  purposes.  The  Hamlets  of  the  bar,  who 
understand  all  your  points  and  are  full  of  valuable  sugges- 
tions for  you,  never  work  except  spasmodically.  They  are 
born  for  contemplation  instead  of  action,  and  their  position 
at  last  becomes  rather  that  of  amici  curiae  than  that  of 
practitioners. 

§  578.  The  good  lawyer  is  pre-eminently  a  man  of  ac- 
tion. He  can  no  more  rest  if  he  would,  than  Napoleon 
could  have  done  in  Italy  surrounded  as  he  was  by  the 
Austrians.  Day  after  day  adversaries  attack  him,  or  force 
him  to  attack,  until  when  he  is  in  large  practice  he  is  in- 
clined to  say  with  Macbeth  : 

"  The  flighty  purpose  never  is  o'ertook, 
Unless  the  deed  go  with  it.     Prom  this  moment 
The  very  firstlings  of  my  heart  shall  be 
The  firstlings  of  my  hand." 

1  Coppee's  Translation,  p.  252  ct  scq.  (Philadelphia,  1862), 


CHARACTER  OF   THE  SUCCESSFUL  LAWYER.     421 

§  579.    Shakespeare  makes  Hamlet,  as  he  sees  men  of 

resolve  marching  off  to  war,  exclaim  upon  his  halting  self: 

"  What  is  a  mau, 
If  his  chief  good  and  market  of  his  time 
Be  but  to  sleep  and  feed  ?  a  beast,  no  more. 
Sure,  He  that  made  us  witli  such  large  discourse, 
Looking  before  and  after,  gave  us  not 
That  capability  and  godlike  reason 
To  fust  iu  us  unused.     Now,  ■whether  it  be 
Bestial  oblivion,  or  some  craveu  scruple 
Of  thinking  too  precisely  on  the  event,  — 
A  thought  which,  quartered,  hath  but  one  part  wisdom 
And  ever  three  parts  coward,  —  I  do  not  know 
Why  yet  1  live  to  say,  '  This  thing  's  to  do.'  " 

This  passage  presents  the  hesitation  of  the  man  of  mind  who 
delays  to  act  with  profound  psychological  penetration. 

§  580.  Themistocles  is  the  opposite  of  the  lagging  Ham- 
let, and  he  is  perfect  in  both  insight  and  strenuousness. 
He  sees  instantly  and  he  acts  instantly.  To  borrow  from 
Shakespeare  again,  he  does  not  think  too  precisely  on  the 
event,  and  the  very  firstlings  of  his  heart  are  the  firstlings 
of  his  hand.     Grote,  paraphrasing  Thucydides,  says  :  — 

"He  [Themistocles]  conceived  the  complications  of  a 
present  embarrassment  and  divined  the  chances  of  a  mys- 
terious future  with  equal  sagacity  and  equal  quickness. 
The  right  expedient  seemed  to  flash  upon  his  mind  ex- 
tempore, even  in  the  most  perplexing  contingencies,  with- 
out the  least  necessity  for  premeditation.  He  was  not  less 
distinguished  for  daring  and  resource  in  action  :  when  en- 
gaged on  any  joint  affairs,  his  superior  competence  marked 
him  out  as  the  leader  for  others  to  follow,  and  no  business, 
however  foreign  to  his  experience,  ever  took  him  by  sur- 
prise or  came  wholly  amiss  to  him."  ^ 

•  1  History  of  Greece,  Chap.  XXXVL 


422    CHARACTER  OF  THE  SUCCESSFUL  LAWYER. 

If  we  forget  the  corruption  and  treachery  of  Themisto- 
cles,  he  becomes  a  priceless  lesson.  We  may  not  expect 
to  parallel  him  in  the  dull  rounds  of  our  little  profes- 
sional lives,  but  it  will  greatly  help  us  to  keep  in  mind 
the  exact  balance  of  rare  acumen  and  consummate  deed 
which  has  made  him  the  model  man  of  action. 

§  581.  The  man  of  action  must  have  courage,  which  for 
the  lawyer  and  general  means  coolness  and  self-command 
rather  than  boldness.  He  who  in  the  most  desperate 
straits,  such  as  the  desertion  of  a  witness  on  the  stand  to 
the  adversary,  a  surprising  decision  of  the  court  against 
the  central  proposition,  or  the  development  of  an  entirely 
misconceived  case  of  the  opposite  party,  never  loses  his 
self-possession,  but  instantly  does  what  is  best  to  be  done, 
has  the  necessary  courage.  This  courage  keeps  the  eyes 
always  open,  and  things  are  seen  right.  To  see  right  is 
the  highest  achievement  of  genius.  To  see  danger  right 
is  at  the  same  time  to  see  the  true  escape.  "  Out  of  this 
nettle,  danger,  we  pluck  this  flower,  safety,"  said  never- 
daunted  Percy.  What  seems  danger  to  the  common  man, 
the  good  eye  discerns  to  be  mere  menace.  Passion  and 
wrath  cannot  serve  for  this  coUectedness.  Again  we  ap- 
peal to  Shakespeare,  who  makes  Enobarbus  say  of  Antony, 
frantically  rousing  himself  for  a  last  effort  witii  the  con- 
quering Augustus : 

"Now  he '11  outstare  the  lightning.     To  be  furious, 
Is  to  be  frighted  out  of  fear  ;  and  in  that  mood 
The  dove  will  peck  the  estridge ;  and  I  see  still, 
A  diminution  in  our  captain's  brain 
Restores  his  heart.     When  valor  preys  on  reason, 
It  eats  the  sword  it  fights  with." 

And  another  character  in  the  same  play  wisely  says : 


CHARACTER  OF  THE  SUCCESSFUL  LAWYER.    423 

"  Never  auger 
Made  good  guard  for  itself." 

This  is  an  old  tale  in  practice.  When  the  leader's  heart 
is  restored  by  a  diminution  of  his  brain,  and  his  action  is 
heated  and  angry,  he  is  near  disastrous  fell. 

§  582.    Our   hero   is   practical,  turning   away  from   all 
irrelevant  matter.     He  does  not   regard  court  as  a  place 
of  discursive  debate ;  and  his  evasion  of  difficulties  is  in- 
stinctive.    While   the  younger   counsel  are  wrangling,  he 
has  forgotten  their  question,  and  is  about  to  deliver  battle 
from  the   vantage   ground  of  palpable  truth.     There  arc 
many  things  which  he  knows  to  be  stronger  than  himself. 
He  husbands  his  power  for  the  achievable.      He  knows 
the  principles  by  which  judges,  out  of  a  varying  and  many- 
sided  nature,  determine  legal  questions,  and  the  influences 
which  lead  juries,  often  changeable  and  mercurial,  to  their 
findings.     In  all  of  his  calculations,  while  he  makes  the 
necessary  allowance  for  weakness,  infirmity,  and  even  ig- 
norance and   prejudice,  he  assumes  that  his  umpires  are 
honest.     The  query  he  proposes  to  himself  is,  By  what 
principle  shall  I  win  ?     What  authority  or  reasoning  will 
bring  the  judge  to  me  here,  and  what   combination  and 
show  of  the  evidence  will  convince  the  jury  or  persuade 
them  to  find  for  me  there  ?     But  the  pettifogger  is  known 
by  his  reliance  on  trick ;   his  study  is  to  devise  deceits ; 
he  plays  with  loaded  dice ;  he  meditates  a  partial  juror, 
a  prompted  witness,  a  perverted  exhibition    of  the  case, 
or  some   other  sham,  telling  falsehood  or  denying  truth. 
What  a  groveller  and  sneak  is  this  to  the  true   lawyer, 
who  recognizes   that,  like  warfare,  litigation  has  too  its 
code,  and  who  even  in  extremity  fights  fair  and   always 
obeys  the  laws  of  honorable  combat  1 


424    CHARACTER  OF   THE   SUCCESSFUL  LAWYER. 

§  583.  It  is  hard  to  formulate  tlie  character  of  tlie  suc- 
cessful lawyer.  He  is  to  be  self-confident  without  self- 
conceit.  He  is  to  combine  the  extremes  of  boldness  and 
caution  :  for  he  is  to  be  prompt,  even  in  the  most  doubtful 
and  delicate  matters  to  decide  what  is  to  do,  and  then  he 
must  act  with  celerity  and  certainty ;  and  yet  both  his 
decision  and  action  are  to  be  deliberate.  It  is  almost  a 
misnomer  to  call  him  a  lawyer.  His  knowledge  of  the  law 
is  the  smallest  part  of  his  professional  attainments.  He 
must  know  mankind  better  than  he  does  the  code  and  re- 
ports, and  he  must  understand  the  infinite  play  of  the  feel- 
ings which,  far  more  than  their  reasons,  move  the  people 
with  whom  he  deals,  —  parties,  witnesses,  jurors,  referees, 
even  the  judges.  He  must  be  able  to  tell,  almost  without 
premeditation,  when  the  courts  will  administer  the  letter 
and  when  the  spirit  of  a  particular  statute.  He  must  at 
all  times  know  the  most  darling  secret  of  his  adversary. 
He  must  recognize  truth  intuitively,  wherever  it  is,  and 
falsehood  likewise,  and  be  ever  capable  of  making  both 
plain  men  and  learned  courts  see  with  his  own  eyes.  He 
cannot  be  infallible  in  every  instance ;  but  when  he  sees 
right  so  often  that  his  few  mistakes  become  wonders  and 
common  talk,  he  is  that  man  of  men  in  society,  that  zenith 
of  modern  training  and  culture,  of  which  each  one  of  our 
States  can  show  a  few  examples,  —  the  pride  and  glory  of 
the  American  bar. 

§  584.  This  is  the  miniature  of  the  good  lawyer.  It  is 
not  over-colored.  Romance  and  adventure  checker  his 
daily  life.  He  is  more  than  a  frothy  speaker  to  tickle  and 
set  agape  the  populace,  and  more  than  the  lucky  drawer 
of  great  prizes  in  his  fees.  He  is  a  wise,  patient,  toilsome, 
intense  worker,  living  in  his  cases,  and  hanging  over  them 


CHARACTER  OF   THE   SUCCESSFUL  LAWYER.    425 

as  affectionately  as  a  mother  over  her  children.  He  fights 
as  many  battles  in  a  year  as  a  general  in  a  lifetime,  and 
again  and  again  expends  on  some  controversy  of  trivial 
moment,  where  his  only  fee  is  the  thanks  of  the  poor  or 
the  blessings  of  the  widow  and  orphan,  more  invention, 
labor,  and  "  skill  of  conduct "  than  often  fill  a  long  cam- 
paign that  ends  in  an  ever  memorable  defeat  of  over- 
counting thousands. 


§  585.  We  have  tried  —  thoughtfully,  conscientiously, 
and  laboriously  —  to  make  a  full  exhibition  of  the  principles 
according  to  which  the  good  lawyer  accepts,  prepares,  and 
tries  his  cases  ;  and  in  this  last  chapter  we  have  done  our 
best  to  sketch  his  intellectual  and  moral  features,  and  com- 
bine them  into  his  honest  likeness. 

We  hope  the  ftict  that  the  subject  has  never  received 
complete  treatment,  and  that  the  failure  of  the  books  — 
even  those  devoted  to  advocacy  and  evidence,  and  those 
which  tell  the  lives  of  great  lawyers  —  to  do  more  than 
consider  it  in  parts  or  fragments,  will  excuse  our  many 
insufficiencies.  The  conduct  of  litigation  has  been  too 
long  without  its  manual,  —  a  manual  of  the  details  of  prep- 
aration as  well  as  those  of  forensic  management,  all  being 
told  in  their  due  perspective  and  actual  unity.  We  do  not 
pretend  fully  to  have  supplied  the  great  want.  A  first 
attempt  to  make  a  complete  presentation  of  such  an  ex- 
tensive art  by  gathering  together  and  systematizing  its 
traditions,  a  very  large  part  of  which  are  unwritten,  is  a 
much  more  delicate  task  than  painting  a  portrait  or  con- 
structing a  map  from  memory.  In  addition  to  long  search 
after  the  widely  dispersed  particulars,  and  painful  recollec- 


426    CHARACTER  OF  THE  SUCCESSFUL  LAWYER. 

tion  from  one's  observation  and  experience,  the  analysis, 
classification,  and  exposition  required  are  only  to  be  per- 
fected by  the  concurring  efforts  of  mauy  generations. 
While  we  have  necessarily  fallen  far  short  of  what  we 
would  have  done,  we  trust  that,  as  a  humble  and  solitary 
pioneer,  we  have  somewhat  smoothed  the  way  for  the 
column  of  organized  workers  behind. 


INDEX. 


INDEX. 


Aggression  and  non-aggression,  §  255  et  seq. 

Alibi,  §  422. 

American  Law  Review,  cited,  §  400. 

American  Law  Studies,  cited,  §§  2,  3,  10,  17,  33,  35,  54,  82, 

98,  141,  159,  173,  295,  297,  353,  392,  491,  520,  523,  530. 
Amicable  settlement  of  litigation,  §  285  et  seq. 
Arbitration,  §  284. 
Argument,  §  490  et  seq. 
Ascendencies,  preponderances,  and  superiorities,  §§  21,  73, 

101,  110. 
Associates  (counsel),  §§  186  et  seq.,  327,  328,  335,  358,  359. 
Attorney,  his  duties  in  England,  §  177. 

BAcoji,  Lord,  §§  502,  524,  527 ;  cited,  §§  42, 44,  49,  188,  571. 

Ballantine,  Sergeant,  cited,  §  392,  note. 

Begin,  right  to,  §§  279,  357. 

Binney,  §  520. 

Bishop,  J.  P.,  cited,  §§  295,  572. 

Bleckley,  Judge,  §§  132,  266. 

Boldness,  when  proper,  §  254. 

Briefs,  §  287  et  seq. 

Brougham,  Lord,  §  431. 

Brown,  David  Paul,  cited,  §§  82,  87,  178  et  seq.,  194,  198, 

199,  371,  376,  378,  382,  383,  387,  389,  404,  451,  478 ; 

generally  as  to  his  Golden  Eules,  §  451. 
Brown,  Professor,   (biographer  of  Choate,)  cited,  §§  206  et 

seq.,  223,  224,  449. 
Brutus,  his  defence  of  Milo,  §  378. 


430  INDEX. 

Bulwer,  cited,  §  375. 

Burr,  A.,  §§  77,  187,  198,  211,  233. 

Campbell,  Lord,  cited,  §§  17,  80,  195,  196,  203. 

Caroline,  Queen,  Trial  of,  §  431  et  seq. 

Cases,  consideration  of,  offered,  §  40  et  seq. 

Catullus,  cited,  §  258,  note. 

Choate,  Rufus,  §§  29,  44,  89,  181  et  seq.,  205  et  seq.,  217, 223, 

224,  238  et  seq.,  249,  255,  410,  449,  469,  485,  480,  522, 

527,  532,  note,  548. 
Cicero,  §§  9,  23,  note,  29,  44,  71,  169. 
Client,  to  be  encouraged  to  complete  confidence,  §  49  et  seq. 

See  Ethics;  Launjer ;  Secrecy. 
Cobb,  T.  R.  R.,  §  573,  note. 
Cockburn,  Lord,  §  351. 
Code  (Justinian's),  cited,  §  255. 
Consultation  of  counsel,  §  327  et  seq. 
Continuance,  §  264  et  seq. 
Cooley,  Judge,  cited,  §  65. 
Copley,  §  543. 

Counsel.     See  Lawyer  ;  Attorney. 
Cox,  E.  W.,  his  Advocate,  §§  32,  36,  38,  336;  cited,  §§  336- 

345,  354,  358,  363-365, 371,  374,  376,  380,  385,  391,  394, 

399,  407,  424-430,  448,  450,  453,  454,  458,  461,  463,  466, 

479,  480. 

Defeat,  §  565  et  seq. 

Demont,  Louise,  cross-examination  of,  §  432. 
Digest  (Justinian's),  cited,  §§  11,  note,  257. 
Documents,  §§  56  e^  seq.,  106. 
Dougherty,  William,  §  252,  note. 

Eldon,  Lord,  §§  67,  81,  137,  197. 

Elements  of  litigation,  the  three,  §§  10-21. 

Emotion,  as  a  factor  in  litigation,  §§14  et  seq.,  168,  242, 

541. 
Erskine,  §§  9,  29,  522. 


INDEX.  431 

Feelings.     See  Emotion. 
Follett,  Sir  W.,  §§  369,  392,  note. 

Gaius,  cited,  §  356. 

Games,  litigation  compared  to,  §  22. 

Goethe,  §§  195,  516. 

Hale,  §  80. 

Hamlet,  §§  516,  577,  579. 

Harris,  critique  of  his  Hints  on  Advocacy,  and  Illustrations 

in  Advocacy,  §§  33,  36,  38,  394,  460,  465;  cited,  §§  28, 

346,  351,  354,  362,  366,  367,  368,  442,  443, 446,  447,  448, 

459,  464,  513,  514,  523,  539. 
Harvey  (Reminiscences  of  Daniel  Webster),  cited,  §§  373, 

438,  439,  520. 
Hill,  B.  H.,  §§  252,  note,  355. 
Horace,  cited,  §§  2,  523,  note,  530,  533. 

Initiative,  §  257  et  seq. 

Institutes  (Justinian's),  cited,  §§  155,  255. 

JoMiNi,  his  Art  of  War,  §  27,  note. 

Judges,  their  methods  contrasted  with  those  of  lawyers, 

§§  3,  6. 
Junior  counsel,  §  177. 
Jury,  selecting,-  §  329  et  seq. 

Kenyon,  §  195  et  seq. 

Law,  and  fact  distinguished,  §  10  et  seq. ;  preparation'  ot, 

§  133  et  seq. 
Lawsuit,  defined,  §  4. 
Lawyer,  constrasted  with  judge,  §§3,  5,  567;    contrasted 

with  law  author,  §  568  ;  his  representative  character, 

§  6  ei  seq.;  character  of  the  successful,  §  567.    See  Table 

of  Contents  generally  for  further. 
Leuctra,  battle  of,  §  221. 


432  INDEX. 

Lewis,  M.  W.,  §  254,  note. 
Lieber,  cited,  §  291.  ■ 
Liebig,  §  56S. 

Litigation,  elements  of,  §  10  et  seq.;  parallel  of,  to  games  and 
warfare,  §  22  et  seq. 

Macaulay,  §  523,  note ;  cited,  §§  2G6,  369. 

Macbeth,  §  578. 

Maine,  Sir  H.,  cited,  §  159. 

Majocchi,  §  431. 

Mansfield,  §  9. 

Marathon,  battle  of,  §  219. 

Marmont,  his  Spirit  of  Military  Institutions,  §  27,  note  ; 

cited,  §  576. 
Marshall,  §  9. 

Mason,  Jeremiah,  §§  215,  522. 
Mill,  J.  S.,  cited,  §  129. 
Milo,  defence  of,  §  71. 
Moreau,  §  321. 
Morison,  cited,  §  523,  note. 

Napoleon,  §§  44,  571;  cited,  §§  75,  131,  321. 
Neilson,  cited,  §§  239,  469,  527,  532. 
New  trial,  §§  522  et  seq.,  250  et  seq. 
Niebuhr,  §  291. 
Note-taking,  §  479  et  seq. 

Objections  to  testimony,  §  466. 

Openings,  of  pleadings,  and  of  the  evidence,  §  335  et  seq. 

Parker  (Reminiscences  of  Choate),  cited,  §§  205,  255. 

Parton  (Life  of  A.  Burr),  cited,  §§  77,  187,  198,  211,  233. 

Passions.     See  Emotion. 

Perpetuation  of  testimony,  §  109. 

Pinkney,  William,  §§  485,  548. 

Plan  of  Conduct,  §§  215  et  seq.,  474.     ■ 

Pleadings,  §  166. 


INDEX.  433 

Pliuy,  cited,  §§  544,  545. 

Preparation  of  cases,  §§5,  25,  28,  29  et  seq.,  133  et  seq. 

Probabilities,  §  72  et  seq. 

Process  for  testimony,  §§  107, 108. 

Proffatt,  cited,  §  335. 

QuiNTiLiAN,  cited,  §§  50-52,  372,  379,  380,  388,  391,  420, 
442,  444,  465. 

Redfield,  Judge,  cited,  §  517. 
Remedy,  §  148  et  seq. 

Reports,  do  not  supply  our  materials,  §  38. 
Rights,  substantive,  of  parties,  §  144  et  seq.  ;  legal,  con- 
trasted with  moral,  §  88. 

Scarlett  (Lord  Abinger),  §§  17,  215,  245,  297,  353,  415, 

483,  522,  528. 
Schomberg,  §  266. 

Scott  (Lord  Eldon),  his  first  case,  §  137. 
Secrecy,  §  248  et  seq. 
Secrets  of  cases,  §  121  et  seq. 
Sellon,  cited,  §  289. 
Shakespeare,  cited,  §§  578,  579,  581. 
Smiles,  cited,  §  197. 
Socrates,  §  202. 

Stephen,  his  Pleading  cited,  §  357. 
Stephen,  Sir  Geo.,  his  Adventures  of  an  Attorney,  etc.,  §  62, 

note;  cited,  §§  102,  183. 
Stephens,  A.  H.,  §§  403,  574. 
Stratagems,  §  128. 

Strategy,  as  correspondent  to  preparation  of  cases,  §§  24,  27. 
Superiorities,  in  litigation,  §  22. 

Tactics,  §§  24,  27. 
Tenterden,  Lord,  §§  17,  60. 
Themistocles,  §  580. 
Theory  of  case,  §§  217,  240,  249. 


434  INDEX. 

Thomas,  T.  W.,  §  574,  note. 
Thurlow,  Lord,  §  196. 
Tidd,  cited,  §  289. 

Ulpian,  cited,  §  257. 

Varro,  §  557. 

Victory,  §  564  et  seq. 

Views,  ordinary,  of  mankind,  §  17. 

Warfare,  litigation  compared  to,  §  23  et  seq. 

Warren,  his  Duties  of  Attorneys  and  Solicitors,  §§  34,  36, 
38 ;  cited,  §§  58,  60,  61,  62,  82,  note,  104,  131,  293. 

Washburn,  Professor,  cited,  §  175. 

Webster,  Daniel,  §§  373,  438,  439,  520,  548. 

Webster,  Professor,  the  famous  case  of,  §§  89,  217,  238,  249. 

Weeks,  his  Attorneys  at  Law,  §  39  et  seq. 

Whipple,  §  532,  note. 

Windscheid,  cited,  §  11,  note. 

Witnesses,  when  case  offered,  §  55 ;  doubtful,  to  be  fastened 
in  their  statements,  §  101  et  seq.  See  Table  of  Con- 
tents, under  Chapters  I.,  II.,  IX.-XI.,  for  further. 


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